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San Jose Divorce Lawyers Blog

When Is Imputed Income Used for Child Support Payments?

 

In the majority of cases, San Jose child support payments are based on the actual earnings of the person making the payments. In select circumstances, however, the Court may order payments based on imputed income. Typically, this occurs if there is evidence that the person responsible for support payments is not acting in good faith in regards to his or her efforts to maintain gainful employment. Normally the evidence will need to be strong and clear, and vague statements that you think the other party is shirking or being lazy will not be enough.

The two primary ways to get the kind of clear evidence you need to have income imputed are a Seek Work Order, or a Vocational Evaluation. There are other ways to get income imputed, as when someone actually intentionally quits their job and stupidly tells someone that they quit to avoid paying support, but while this approach works if you have the facts, you almost never do. If the other party has a substantial asset, like a parcel of real estate, that is currently earning no income, then the Court can assign an imputed rate of return to that asset as if it were money in the bank, but at current interest rates this avenue might not be as helpful as it was in the past.

With a Seek Work Order the Court will eventually bring the other party back, and ask them how their job seeking efforts have been going. If they did not look for work, then the Court can, and regularly does, impute minimum wage full time employment income. The real goal of the Seek Work Order is, of course, that the other parent actually get a job, in which case the Court will use their actual income, which hopefully is higher than minimum wage.

A Vocational Evaluation is prepared by a neutral professional who generally interviews the subject, and prepares a report stating his/her professional opinion regarding how much the other parent should be earning. The Courts in Santa Clara County generally follow the opinions of these professionals, and that can make this type of evidence very powerful. A report that states that the other parent should be earning $50,000 a year usually results in $50,000 a year in imputed income. A Vocational Evaluation can be expensive, as the professionals will charge for this service.

Remember that the intention of the parent paying support is a key factor in deciding if imputed income should be used. Child support payments aren’t based on imputed income if the paying parent is unemployed through no fault of his or her own and actively looking for work. Involuntary underemployment, such as having hours reduced from full-time to part-time due to a lack of available work from the employer, would also not qualify as a reason to use imputed income for child support.

When deciding if using imputed income for child support payments is appropriate, the Court can look at the previous earning history of the person paying support as well as any other factors relevant to their current earnings. If you have questions about whether the use of imputed income is appropriate to your case, it is best to speak to a qualified San Jose child support attorney.

Does Child Support Help Pay for College?

San Jose child support payments typically stop when a child turns 18, graduates from high school, or at age 19 if still a full time student in high school. Some states require noncustodial parents to continue to provide support in the form of helping to pay for post-secondary education; however, California currently does not have any legal requirement that noncustodial parents make support payments for the college education of their children.

Studies have shown that children with divorced parents attend college at a lower rate than their peers from intact families simply because of a lack of financial support from their parents. This discrepancy is troubling because college graduates earn significantly more over their lifetime than those with no post-secondary education. If you are in the middle of a divorce, you should think about your children’s college plans.

It might seem nonsensical to you as you find yourself gearing up to fight over money, that planning on giving some away, albeit to your own flesh and blood children, could be in your best interests. Here’s why it’s not nonsense: in many cases this counsel has seen the parties aren’t actually fighting to get the money, instead they are fighting to keep the other party from getting the money. Logically, money that goes to your children does NOT go to your spouse. Even better, your children will probably appreciate going to college and having a better life.

If you can get the other party talking about working together to do something, like put money aside for college, then it is MUCH more likely that you can settle the other issues in your case. It is a kind of emotional momentum that once it gets started could save you many thousands of dollars in legal fees expended fighting over borderline issues.

I have used this tactic with varied success numerous times. Sometimes it works, and even works pretty darned well. Other times it falls flat. It has never, in my experience, caused any increase in the acrimony between the parties, so it seems to be a tactic that has no real downside.

As each case is unique, and the emotional dynamics vary, my observations are more intuitive and anecdotal. Nevertheless, I think it is that case that many parties can actually reduce their legal fees incurred in fighting by more than the cost of putting some money into a college fund, and as a result actually come out ahead for themselves. The key is to use this gambit to start the emotional momentum towards settlement in general.

Stated differently, sometimes people get a little crazy in a divorce, and if you, or a good attorney, can insert some common sense into the process you could end up paying for your own children’s college education instead of paying for your attorney’s children’s college education.  It’s just an idea.

At the law offices of Thomas Chase Stutzman we end up settling the vast majority of the cases we take on.

 

First Woman on “Most Wanted” List of Child Support Fugitives Is Captured

Many parents who are ordered to pay child support after a San Jose divorce are surprised to learn that there is a “Most Wanted” list of Child Support fugitives that is compiled by the U.S. Department of Health and Human Services.

Although failure to pay child support is often associated with the deadbeat Dad stereotype, Dee Dee Riggs has the distinction of being the first woman in the United States to make the list of Child Support fugitives. Ms. Riggs allegedly amassed an almost $330,000 debt for three children after being ordered to pay $325 per week in 1999. She allegedly left the state of New York with the intent of avoiding prosecution for Child Support arrears, which further compounded her legal troubles.

Ms. Riggs allegedly was caught in in Honesdale, Pennsylvania and was allegedly put in jail on a $50,000 bond. She allegedly faces 20 counts of misdemeanor criminal contempt.

The Office of Inspector General (OIG) seeks to take action on Child Support cases if the parent paying the support lives in a state that is different from the child receiving the support and at least one of the following factors apply:

  • The noncustodial parent willfully fails to pay Child Support for at least one year.
  • The noncustodial parent owes at least $5,000.
  • The noncustodial parent has traveled to another state or country for the purpose of avoiding paying support.

Upon first hearing of this expansion of the power of the Federal Government to pursue Child Support Evaders who cross State lines you may have thought of how under Pennoyer v. Neff (1878) 95 U.S. 714, Baker v. Nelson (1972) 409 U.S. 810 and Amendment X of the United States Constitution, marriage and divorce are questions of State Law. Surely Child Support, an issue arising from these same Family Law issues must be an issue of State law as well? Looked at from another angle, the criminal aspect of Child Support Evasion arises from the Contempt of a State Court Order, and shouldn’t the State Court retain jurisdiction over it’s own Orders? Nevertheless, the Federal Government has unilaterally decided to chase after Child Support Evaders.

No one really likes these Evaders, so if Uncle Sam is coming for you, you should not expect anyone to start an Occupy movement on your behalf. That you may be the guinea pig used to train Federal Agents to track down Evaders who cross State lines, and that the list of Evaders who will be tracked down by the IRS under Obamnacare may grow to be immense will do you no good. The vast majority will not see that by allowing your Constitutional rights to be made void they are setting themselves up for real tyranny. Instead, the vast majority will cheer as you are caught. The majority will be happy to hear that:

First offenses can be punished by a fine and/or up to six months in prison. Second offenses or cases where the debt is unpaid for more than two years or totals more than $10,000 face a possible fine of up to $250,000 and/or up to two years in prison. It is not clear whether these Federal fines are in addition to, or replace altogether, the penalties set forth by the California Legislature when it directed the preparation of form FL-485. Noncustodial parents who are convicted must also repay the child support that is owed.

Federal Child Support Enforcement efforts are done through the “Project Save Our Children” initiative. The parents who are currently on the “Most Wanted” list of Child Support fugitives owe amounts ranging from $10,000 to $259,000.

If you are behind on your Child Support payments, you should talk with an experienced attorney as soon as possible to discuss your options for dealing with the debt.

What Is Project Save Our Children?

If your ex is not paying the San Jose child support that was set after your divorce, there are several different legal options available. One option for seriously delinquent child support cases is Project Save Our Children.

Project Save Our Children (PSOC) is a federal initiative that pursues parents who owe large sums of child support and are intentionally avoiding payment by crossing state lines. Federal and state law enforcement agencies work together through PSOC to obtain felony convictions in these cases.

The California Constitution includes, in its Article I Section 10 the following: “Witnesses may not be unreasonably detained. A person may not be imprisoned in a civil action for debt or tort, or in peacetime for a militia fine.” This prohibition on civil debtor’s prison is ignored, as the failure to pay child support is characterized as willfully disobeying the Court’s support Order.

To be eligible for prosecution through PSOC, a child support claim must meet the following criteria:

  • The case must be an existing IV-D case.
  • It must involve a non-custodial parent crossing state lines for the purpose of avoiding child support payments.
  • Criminal non-support referrals must meet the statutory criteria for federal prosecution.
  • All other enforcement remedies have been exhausted.

Every state has a PSOC Coordinator who is responsible for coordinating enhanced PSOC locate request activities and referring activities for criminal non-support prosecution to the appropriate federal office.

Although not all child support collection cases are eligible for services under Project Save Our Children, there are still many other options that can be used to collect the debt. This may include steps such as seizing an income tax refund, revoking a professional license or not allowing a parent to obtain a passport until his or her child support arrears have been paid.

Interest continues to accumulate on unpaid child support debt. There is also no stated statute of limitations regarding the collection of child support. So, even if your child is no longer a minor living under your care, you can still attempt to collect the support that you are owed.

To explore your options for child support collection, contact an experienced San Jose attorney. Depending on many variables, including your ex’s employment status and how much money is owed, your attorney can recommend the best course of action to take.