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Are Child Support Payments Needed When Parents Have Joint Custody?

After a Santa Clara County divorce , some parents push for joint custody thinking that this will ensure they do not have to make child support payments. However, this is not always the case.

First, it is important to realize that there are many interpretations of joint custody. Depending upon parental work schedules and the travel time between homes, it may not be physically possible for the child to be in the care of each parent exactly 50% of the time. A 60/40 split is fairly common with joint custody arrangements. However, depending upon the incomes of each parent, child support may be necessary even if the parents have a precise 50/50 split in the amount of time they are caring for the child.

Child support in California is calculated according the formula CS = K[HN - (H%)(TN)].

The components of the formula are as follows:

  • CS = Child support amount
  • K = Amount of both parents’ income to be allocated for child support
  • HN = High earner’s net monthly disposable income
  • H% = Approximate percentage of time that the high earner has primary physical responsibility for the children
  • TN = Total net monthly disposable income of both parties

If the high earning parent’s net monthly disposable income is significantly greater than the lower earning parent’s net monthly disposable income, child support may be ordered even if the parents are each physically caring for the child fifty percent of the time.

Deductions may also come into play when determining if child support would be ordered in a joint custody situation. Net disposable income is defined as actual gross income minus allowable expenses, including state and federal income tax liability, deductions for mandatory union dues and retirement benefits required as a condition of employment, deductions for health insurance for the parent and any child the parent is obligated to provide coverage for, and child support or spousal support being paid by court order for someone who is not the subject of the current child support order. Job related expenses are allowed as deductions under the court’s discretion.

Even if child support is not ordered, parents with joint custody may be required to share in the expense of employment-related child care costs or uninsured medical costs for the child. An experienced San Jose child support attorney can explain this in greater detail.

Back to School Tips for Divorced Parents

After a Santa Clara divorce, back to school season can be particularly complicated. Juggling a school schedule with custody and visitation agreements requires careful planning on the part of both custodial and noncustodial parents.

Before the year starts, consider sitting down with your ex to discuss how you’d like to divide supervisory responsibilities for school projects and special events. Dividing the labor based on your individual strengths makes more sense than forcing the parent who hates science to help with the science fair project and having the parent with no ear for foreign languages practice Spanish vocabulary words.

Custodial parents usually pay for school supplies and back to school wardrobes, unless the couple has worked out an agreement that says otherwise. However, a custodial parent is well within his or her rights to ask for help paying for expenses that are out of the ordinary — such as the cost of a special school field trip or a private algebra tutor for a child who is struggling with math.

If a noncustodial parent’s budget allows it, buying duplicates of basic school supplies like crayons, markers, glue, index cards, and notebook paper will make sure the child has access to learning materials regardless of the custody and visitation schedule. Noncustodial parents may want to set up a corner to use as a study area or keep everything in a box so it can be pulled out as needed.

California law states that a noncustodial parent can’t be denied access to records and information about his or her minor child based solely on custody status alone. This includes access to medical, dental, and school records. If you are a noncustodial parent who doesn’t have the greatest relationship with your ex, it may be best to simply request that the school provide separate, duplicate notifications regarding your child’s academic progress, participation in school activities, and any other relevant issues.

To help make sure everyone is on the same page, create a calendar that lists important school events as well as your custody and visitation schedule. Make four copies: one calendar for each parent’s house, one for the child’s backpack, and one to provide the teacher.

Remember that schools assume that both parents have an equal right to pick up and drop off the child unless they are told otherwise. If you have sole legal custody and do not want your ex picking up your child from school, make sure you provide the school with a copy of your custody order and a written request that your child only be allowed to leave school with you. Your San Jose divorce lawyer can provide assistance with this, if needed.

Unmarried Fathers: What You Need to Know

In recent years, San Jose family law attorneys have seen a dramatic increase in child custody and visitation cases involving unmarried fathers.

If a couple is married when a baby is born, it is automatically assumed that the husband is the father of the child. For unmarried couples, however, there is no assumption of paternity. To establish paternity, the father’s name can be listed on the birth certificate or the father can sign a Voluntary Declaration of Paternity form. If the child’s mother denies the paternity claim, a DNA test can be used to establish paternity.

Once paternity has been established, an unmarried father has the same rights as a father who was married to the child’s mother and later divorced. Custody and visitation will be determined based on your individual circumstances. Some fathers choose to give the mother full custody and seek periodic visitation rights, while others opt to ask the court for joint or shared custody. No matter what option you decide, you’ll be asked to establish a parenting plan that outlines the roles and responsibilities of both you and your ex.

If paternity has been established, the mother of the child is not allowed to place the child up for adoption without your consent. This includes efforts to have her spouse formally adopt the child. The court is only allowed to terminate your parental rights if you have failed to fulfill your parental duties or been found guilty of child abuse.

In addition to granting the right to custody or visitation, establishing paternity creates an obligation for an unmarried father to pay child support. However, visitation and child support are considered two separate issues. Your child’s mother can not legally prevent you from exercising court-ordered visitation rights even if you’ve fallen behind on your child support payments. You are also not allowed to refuse to pay your child support because you’ve been denied the right to see your child.

Because the court has been slow to recognize the problems faced by unmarried fathers, it is important to have an experienced San Jose family law attorney advocating for your needs. A skilled attorney can help you better understand your options for maintaining a relationship with your child.

What Happens After You’ve Been Served with a Petition for Divorce?

If you’ve been served with a Petition for a San Jose divorce, you have four options.

  1. True Default: If you choose to do nothing, your spouse will most likely be given everything that he or she has requested in the Petition. This is called a true default because you are giving up your right to participate in the process. The judge will make all decisions regarding issues such as the division of assets, child custody, and the payment of child support and/or spousal support based solely on the information your spouse has provided. Most people do not choose a true default because they want to actively participate in the divorce process.
  2. Default: A default occurs when you are not filing a response, but you have created a written, notarized agreement with your spouse taking care of all the issues relevant to your case. You are considered to be defaulting because you have not filed a response, but your notarized agreement allows you to still have a say in the outcome of your case.
  3. Uncontested: In an uncontested divorce, you are filing a response to the Petition. However, you and your spouse are not disagreeing about any issues relevant to your case. This is what most of us refer to as a “friendly” or “amicable” divorce.
  4. Contested: If you disagree with the terms your spouse has listed in the petition, you can contest them by filing your own response outlining your terms. The court will then make the final decision regarding the disputed issues.

It is important to consider that none of your options will prevent your spouse from being granted a divorce. Since California is a no-fault divorce state, anyone who wants a divorce will be granted one regardless of whether or not their spouse wants to attempt to save the marriage.

You only have thirty days after being served the Petition to file your response, so it’s vital that you consult with an experienced San Jose divorce attorney as soon as possible to discuss all of your options. Having a skilled attorney on your side will ensure that your interests are protected throughout the divorce process.

Glossary of Child Support Terms

The process of setting San Jose child support payments can be confusing at times. Here’s a list of some unfamiliar terms you might encounter during your divorce.

  • Arrearage: Overdue child support that a noncustodial parent has failed to pay is called arrears. The term arrearage refers to the overdue amount plus the interest that is charged on the debt. Having arrearage subjects a parent to penalties such as the loss of his or her driver’s license, passport, and/or professional licenses.
  • California State Department of Child Support Services — also called DCSS: This is the office that oversees the state’s child support program.
  • Compromise of Arrears Program: A program by which the government accepts a partial payment of past due child support in exchange for forgiving some of the debt that is owed. Not all parents will qualify for this program.
  • CP: An abbreviation for custodial party. This is the person who is physically responsible for the child the majority of the time. The CP is normally the one who receives child support payments.
  • Income Withholding: If a parent paying child support works for someone else, the employer will automatically deduct payments from his or her earnings to satisfy the court-ordered child support obligation. This ensures that the debt is paid in a timely fashion.
  • LCSA: An abbreviation for local child support agency. This is the county or regional office providing child support services to parents. The LCSA is part of the California State Department of Child Support Services.
  • Medical Support Order: If the child has medical or dental expenses not covered by insurance, a medical support order can be issued to require the noncustodial parent to assist with these costs.
  • Modification: An adjustment of the original child support order due to a change in circumstances. A decrease in payments might be ordered due to the paying parent’s unemployment. An increase in payments might be ordered if the paying parent’s income has significantly increased or there are added expenses associated with the child’s basic needs, such as a rise in daycare costs or school tuition. Modifications are not done automatically. They must be initiated by one of the child’s parents.
  • NCP: An abbreviation for noncustodial party. This is typically the parent who has visitation rights for the dependent child and is paying child support to the custodial parent.

Do not be afraid to ask your San Jose child support attorney questions if you encounter unfamiliar terms in the mailings you receive regarding your support payments or if you have questions about how the law applies to your specific case. Being an active participant in the process is the best way to ensure that the interests of both you and your child are protected.

Creating an Estate Plan Around Your Prenuptial Agreement

If you have children from a previous marriage and are thinking about taking a second trip down the aisle, San Jose family law attorneys recommend using a prenup as part of your estate planning process.

A prenup can be used to keep preexisting assets separate from those you wish to share with your spouse in the event of a divorce. For example, you may wish to protect a family business and/or real estate so that it may be passed on to your children.

If you want to draw up a prenup for a second marriage, keep in mind that you’ll need to redo your will and any existing trusts at the same time to ensure that the documents do not contradict each other. Since it is considered a legal contract, the terms of a prenup could theoretically be used to override a will or build a case for your spouse to contest the terms of your will after your death.

Using the prenuptial agreement as the basis for your estate plan, you can distribute your assets in a way that best provides for all of your heirs. For example, if you have a business that you want your children from a previous relationship to someday manage, you may create a family limited partnership. This would provide your spouse with income from the business without giving him or her control over the business’s daily activities. Assuming you work with an experienced certified public accountant before completing the transfer of assets, forming a family limited partnership should have no adverse tax consequences. If your children are still minors or are not yet equipped to handle the responsibility, you can name a secondary person, such as a close family friend, as manager of the LLC that holds the family limited partnership. You can then set ages at which your children will become co-trustees or sole trustees.

Since homes have both sentimental and financial value, distribution needs to be handled delicately when creating your estate plan. A qualified personal residence trust can be used to ensure that your surviving spouse is allowed to remain in the marital home while still preserving the right of your children to someday inherit the property.

Aside from business and real estate holdings, retirement accounts are often one of the largest assets to consider. If desired, a trust can be set up to hold retirement assets for the benefit of your children from a previous relationship. However, your spouse needs to formally waive his or her right to be a beneficiary in the 401(k) plan.

Your San Jose family law attorney can answer any additional questions that you may have regarding how to prepare a prenup that fits in with your estate plan.

When Will My Alimony Payments End?

If you are relying on alimony payments to make ends meet after your divorce in San Jose, you may be wondering under what circumstances alimony can be modified or terminated.

If your marriage lasted ten years or more, it is considered a marriage of long duration under California law. This is significant because the court does not set a definite termination date for spousal support when ending a marriage of long duration. If your marriage lasted less than ten years, alimony payments are presumed to be necessary for no more than half the length of the marriage.

Alimony payments will be terminated if you remarry. If you live together with a partner in a romantic relationship, you may also see your alimony payments reduced or terminated. Living with a roommate to save money will not affect your spousal support payments, however.

Your former spouse is allowed to ask for a reduction in alimony payments if his or her income significantly decreases through involuntary unemployment or underemployment. Modifications can be approved for self-employed payers as long as the reduction in income is not due to a simple desire to work fewer hours.

California law states that your former spouse can not be forced to work past the age of sixty five for the purpose of paying alimony. If your spouse is forced into early retirement by his or her employer, this may also have the effect of ending alimony payments.

If your former spouse believes that you are not working towards financial self-sufficiency, he or she can ask for a vocational examination. This is a form of discovery in which a trained employment evaluator looks at your education, skills, past work experience, and the current job market to determine if you should be able to find employment. The court can’t force you to seek employment, but they can enter an imputed income for you based on the findings of the evaluation. This could possibly have the effect of lowering your alimony when new payment amounts are calculated.

Since alimony awards in the state of California rely on many different variables, it is best to discuss your spousal support concerns with a qualified San Jose divorce attorney.

How Do I Get Spousal Support?

Child support is automatically determined during a Santa Clara County divorce, but spousal support awards must be requested by the lower earning spouse. Spousal support is awarded to the lower earning spouse if he or she requires extra assistance to establish an independent life post-divorce and the higher earning spouse has the ability to reasonably pay the support. Spousal support is most often awarded when the lower earning spouse made sacrifices during the marriage to support the higher earner’s career, such as working only part time to help care for young children. Spousal support is normally considered tax deductible for the paying spouse and taxable income for the supported spouse.

Spousal support generally ends when one of the spouses dies, the person receiving the support remarries, or the court order declares that it ends. Cohabitation can sometimes trigger an end to spousal support, depending on how the terms of the agreement are stated.

A reasonable period of time for spousal support is usually determined to be one-half of the length of the marriage, but the judge has the discretion to avoid setting an end date to spousal support if the couple has been married ten years or more. California law states that marriages of ten years or more are considered “long term” marriages subject to special protection.

If the income of the person paying the support goes down, he or she can go back to court and request that the amount of the payments be lowered to reflect the change in circumstances. Support payments continue to accumulate at the previously determined rate until this is done and there is a 10% per year interest charge on the overdue balance.

The laws surrounding spousal support can be complex, so this issue should be discussed with your Bay Area Divorce attorney as soon as possible. If needed, your attorney can request a temporary order of support so you have the funds needed to pay for your living expenses while your divorce is in progress.

Retirement Accounts as Marital Assets

One common mistake people make during a San Jose divorce is failing to consider how divorce will affect their retirement.

A recent Securian Financial Group survey of over 500 divorcing couples who were married for ten years or more found that 31% did not claim a share of their spouse’s retirement benefits because they weren’t aware that they were entitled to a portion of these marital assets. Among those surveyed after the divorce, 25% said they wished they had known more about how to divide retirement benefits.

In California, retirement assets accumulated during marriage are considered community property that belongs to both spouses. This is true even if one spouse only works outside the home part time or not at all. However, any retirement assets accumulated before marriage belong solely to the person who earned them. This means it’s possible for a retirement account to have funds that are classified as both separate and marital assets.

If you are the lower earning spouse and have minimal retirement funds in your own name, you should prioritize retirement over all other marital assets. In the long term, retirement assets are more beneficial than taxable alimony payments or gaining possession of a house that you will struggle to maintain on your own.

Retirement assets are divided with what is known as a Qualified Domestic Relations Order (QDRO). A QDRO is a legal document that protects both of you from owing taxes when funds are transferred from one party to the other.

By law, you are allowed to withdraw money from your former spouse’s 401(k) or 403(b) plan one time without incurring the 10% early withdrawal tax penalty for people under age 59 ½. Most financial planners recommend not taking advantage of this perk, however, since allowing the money to continue to grow tax-deferred is the best way to ensure a secure retirement.

Your San Jose divorce attorney can answer general questions regarding how retirement assets are divided, but hiring a financial planner is strongly recommended. A skilled financial planner can provide you with specific advice regarding how to create a secure post-divorce financial future.

Hiring a Child Support Attorney to Handle Your Case

San Jose child support is automatically set as part of your of your divorce settlement, but you may need to go back to court at a later date to ask for a modification or to seek assistance in collecting payments that are overdue. If this happens, hiring an experienced child support attorney can make it easier to navigate the state’s family court system.

A child support attorney can help with issues such as:

  • Collecting overdue child support
  • What to do if you think your spouse is lying about his/her income
  • How to collect child support from a self-employed parent
  • Asking for an increase in child support because of a change in the child’s needs or living expenses
  • Extending child support payments for a special needs child who is unable to live independently
  • Requesting a reduction in child support due to financial hardship
  • Requesting a reduction in child support due to a change in custody arrangements
  • Understanding how remarriage or the birth of an additional child may affect a child support order
  • Requesting the use of imputed income to determine child support for a parent who refuses to find employment

Our article Questions for Your Child Support Attorney provides additional information regarding some of the issues that a child support attorney can help with.

Questions to Ask When Interviewing Your Attorney

Basic questions to ask before hiring any San Jose child support attorney include:

  • Do you specialize in family law?
  • How many years have you been practicing?
  • Will you personally be handling my case? If so, do you have time in your schedule to give it your full attention?
  • What do you see as your ultimate goal in handling my case? Are there any specific legal challenges I should be aware of?
  • Do you have a list of former clients who can provide testimonials regarding your services?
  • Do you work on a retainer?
  • Is there an hourly rate in addition to the retainer?
  • What hourly rate is charged if I speak to your secretaries, paralegals, or other staff members?
  • Can you estimate the total cost of your services upfront?
  • What factors could potentially influence that estimate?