San Jose Divorce Lawyers Blog

Domestic Violence and Child Support

After a divorce, victims of Domestic Violence are often reluctant to seek San Jose child support because of the fear of angering their abuser. Some abusers will attempt to manipulate the victim by falsely offering to send voluntary child support instead of opening a formal case. In the experience of this attorney, these voluntary support payments have never been as much as what the Court would Order, and they usually were not regularly made either.

Child support is to make sure you are able to provide the level of care your child is entitled to based upon the standard of living of both parents. Under California Law, the child (ren) have a right to share in what each parent earns. Letting your ex intimidate you into going without support payments is a mistake.

When a victim of Domestic Violence is filing for child support, the Court can, and usually does if you ask, offer several legal protections. The victim should not have to meet with the abuser. In Court, the bailiff will regularly instruct parties where there has been Domestic Violence to stay apart by literally sitting on opposite side of the Courtroom and not talking before a hearing. Court bailiffs can, and often do, handcuff abusers and send them to jail for their antics in the Courtroom building. The victim’s personal information, such as home and work addresses, can be kept out of Court Records. The standard California DVRO CLETS (Domestic Violence Restraining Order California Law Enforcement Telecommunications System) application forms have boxes to check for child custody and support, so abuse victims may seek an Order of protection at the same time as seeking child support and/or spousal support. If you think you will have trouble facing your abuser, please remember that California Law allows you to bring a Support Person and the Judge will be watching what your abuser does in the Courtroom.

If you are seeking public assistance benefits for your child, such as food stamps, cash benefits, or housing assistance, the state of California requires that you file for child support. Tell your caseworker immediately that you are a victim of Domestic Violence to ensure that all safety precautions are taken when the state attempts to collect child support.

As a custodial parent, you should remember that child support and visitation are not connected. A parent has to pay child support even if he is not allowed to see his child. If the relationship had a history of Domestic Violence, the Court may forbid the abuser from seeing the child or require visitation to be supervised by an independent third party. Once a finding of Domestic Violence is made by the Court there can be serious consequences.

If you believe your abuser should not be allowed to visit your child, you should hire experienced legal counsel and cooperate fully with your attorney in gathering evidence that visits are not in the child’s best interests. Your child may need to speak to a psychologist who can testify in Court about the impact of Domestic Violence on the child’s relationship with the non-custodial parent.

Types of Child Support Cases

San Jose child support payments are classified as IV-D, non IV-D, IV-A, or IV-E under Title IV of the Social Security Act of 1975.

IV-D: This type of child support case is one in which the custodial parent is receiving assistance from the Office of Child Support Enforcement, such as help establishing paternity or help enforcing a child support order.
Non IV-D: This type of child support case is one in which child support is established and maintained privately, such as following a divorce. All Non IV-D cases established after October 1, 1998 must be registered with the State Case Registry. A Non IV-D case could become an IV-D case if it is referred to the Office of Child Support Enforcement in an attempt to collect outstanding child support debt.
IV-A: This type of child support case is one in which the custodial parent is receiving public assistance from the state, such as CalWORKs benefits. The state automatically refers parents on public assistance to the Office of Child Support Enforcement in hopes of defraying some of the cost of providing assistance.
IV-E: This type of child support case is one in which the child in need of support is being cared for by someone other than a biological parent, such as a grandparent or the foster care system.

The type of child support case is relevant in determining how support payments will be calculated. In California, only the California Guideline Child Support Calculator can be used in Title IV-D child support proceedings. In other cases, the court can use any software certified by the Judicial Council, including DissoMaster, CalSupport and CalSupport PRO, Xspouse, or SupporTax as well as the California Guideline Child Support Calculator.

Regardless of what type of child support case you have, seeking the assistance of a qualified San Jose child support lawyer can help make sure that you receive the money you need to make sure your child is properly cared for.

What Is the Compromise of Arrears Program (COAP)?

If you’ve gotten behind on your San Jose child support payments, you might be wondering if you would be eligible for the Compromise of Arrears Program (COAP).

There are very specific eligibility requirements for COAP in order to prevent noncustodial parents from deliberately not paying child support and using the program to not be penalized for their debt. COAP is for parents who are financially not able to pay child support and have a child who received public assistance benefits because of the missing child support payments. Parents applying for the program must owe at least $501 and have no contempt finding or conviction within the past six months for failure to pay child support.

If you are currently living with your child and have an income that is below 250% of the poverty level, you might be eligible for Family Reunification COAP. This program is designed to reduce financial hardships and make it easier to care for your child’s present needs. If you child is still a minor, you should carefully consider having the current ongoing support order modified.

Some members of the military are eligible for a special compromise opportunity to settle child support arrears. Current reservists or members of the National Guard that have been activated to military service and deployed can receive a compromise of arrears if their current child support order was not changed to reflect the cut in pay they received by being activated to military service.

If you think that you might be eligible for COAP, the first step is to contact your Local Child Support Agency (LCSA). You can also print out a copy of the COAP policy and procedures manual from the California Department of Child Support Services website.

Even if you don’t qualify for COAP assistance, help is available to manage your child support debt. A qualified San Jose child support lawyer can explain your options and help you apply to have your payments reduced to reflect the changes in your income or expenses that have reduced your ability to make the current support payment.

How Will I Receive My Child Support Payments?

Parents who will be receiving San Jose child support payments after their divorce often have questions about the collection and payment process.

Federal laws require child support payments to be sent to one central location within each state. For parents in San Jose, this is the California Department of Child Support Service’s Sate Disbursement Unit (SDU). You are not allowed to make separate arrangements with the parent paying the child support.

A custodial parent who receives child support payments can receive the money with a paper check sent to his or her current mailing address, through direct deposit into a checking or savings account, or via an Electronic Payment Card (EPC) card that works much like an ATM or debit card. If the custodial parent is receiving child support payments from more than one party, all payments will be added to the same EPC account.

There is a $25 service fee applied to child support collections for a parent who is currently receiving at least $500 in payments each year and who has never received cash assistance benefits such as CalWorks, Aid to Families with Dependent Children (AFDC), Temporary Assistance to Needy Families (TANF) or Tribal TANF. The fee is charged regardless of what method you select for receiving your payments. The fee is collected as a result of the Federal Deficit Reduction Act of 2005, Public Law 109-171 and California Family Code Section 17208(c).

In addition to collecting and processing payments, the California Department of Child Support Services can help with establishing and maintaining support orders or work with other states to enforce support orders when the noncustodial parent lives outside of California. The office can’t handle issues relating to child custody or visitation, however. These concerns must be handled by a qualified San Jose family law attorney. You may also wish to hire a private child support attorney if your ex spouse falls behind in payments and you desire additional collection services beyond what is provided by the state.

Is There a Statute of Limitations on Child Support Payments?

When you are ordered to pay San Jose child support, remember that there is no statute of limitations regarding the collection of past due child support in the state of California. Once you owe child support, you owe the money until it is repaid. The debt is not simply forgiven when the child in question turns 19 or graduates from high school. Since many other types of debts do have a statute of limitations for collection, this makes child support unique.

Interest on unpaid child support accrues at a rate of 10% per annum. California has some complicated laws banning interest accruing on interest, but those can be circumvented by having the Court make findings of what the arrears are, and then the interest gets rolled back into a Judgment amount and can itself start accruing interest too. This means that a noncustodial parent can quite possibly be responsible for hundreds of thousands of dollars in back child support for a child who is now old enough to have children of his or her own. Parents with child support arrears can also face other consequences, such as not being able to renew their California driver’s license or being unable to get a passport.

Payments for back child support will presumptively go to the custodial parent who should have received the original child support payments, although there can be times when AFDC was paid to the custodial parent, and the State can recover the aid it previously paid out. The child support does not go to the adult child, unless there is an agreement, which should be in writing and also be signed by the Judge in your case.

If you deal directly with the other parent and try to pay off or settle the arrears, please understand that in California only a signed Court Order can modify a child support order. Also make certain you can prove any payments you make, as some parents have paid the support in cash only to later have the other parent claim there was no payment made. Support payments should also be clearly labeled, as sometimes the parent receiving the support will claim that the payment was a gift, or for something else.

Declaring bankruptcy generally does not erase a noncustodial parent’s obligation to pay child support. However, since it does wipe out other types of debt obligations, a parent facing a large child support debt may choose this option simply to make overdue child support payments more affordable.

If you are behind on your child support payments, it is important to talk to a qualified San Jose child support attorney as soon as possible. If you have a child support order that you can’t pay due to a job loss or other financial difficulties, you should file a Request for Order to modify the current support order. Child support orders are never automatically adjusted, so the debt will continue to accumulate until you take action to have the payments reduced. For the sake of your future financial well being, it’s in your best interests to get the problem taken care of as soon as possible.

Paying Child Support for Adult Disabled Children

According to California law, San Jose child support generally ends when a child turns 18 and is not a full-time high school student or when the child turns 19. Child support can also end if the child dies, marries, becomes emancipated, or joins the military. However, exceptions to the standard child support rules can be made if the child suffers from a serious physical or intellectual disability that would prevent him or her from becoming self supporting. In this attorney’s experience, this exception has only been applied to a disability that arose when the child was still a minor, and not to any new disability that arose after the child turned age 18 or 19 (SEE California Family Code Section 3910).

The burden of proof that an adult child requires continuing support rests with the custodial parent or the adult child himself, depending on who has initiated the claim for continued child support payments. It is a high burden of proof, as there is an underlying presumption that after 18 or 19 years of paying support, the Court should let the paying parent go. A Vocational Expert and/or Medical Doctor may be called in to testify as to the severity of the disability, since many adults with disabilities are able to find employment and become self supporting. A child having a disability does not automatically entitle the child to support.

The duty to provide support to an adult disabled child is not eliminated if the child receives Social Security or other types of government support. In fact, state agencies have successfully sued parents for child support of adult children if the disabled adult is receiving public benefits and an agency representative convinces the Court that continued child support payments are appropriate under the circumstances.

The formula for calculating support for a disabled adult child is based on the income of both parents, just as it would be if the child was a minor. However, the court cannot compel an adult child to visit with the parent paying support.

The rules surrounding child support for disabled adult children can be very complex, and the level of evidence and proof needed to prevail are much higher than in a regular child support case, so it’s important to speak with a San Jose child support attorney who has experience in this area. Even if your disabled child is still very young, you should take steps to make sure he will be legally protected for as long as necessary.

Student Loans and Divorc

Couples getting a San Jose divorce usually assume that student loans are the responsibility of the person who incurred the debt. However, this is not necessarily the case.

Student loans taken out before a couple is married are generally the responsibility of the person who incurred the debt. Potential problems and/or complexities can occur if one spouse was a student during the time of the marriage and/or if payment(s) on the loan(s) are made using community property funds. (This blog posting is limited to Family Law issues, and will not, for instance, delve into the nuances of the bankruptcy code and/or the likelihood that those student loans cannot be discharged in bankruptcy).

At least several legal principles could be considered in order to sort out what to do with student loans in a divorce: (A) Debt used to pay living expenses during the marriage is generally a marital/community obligation, whether it’s in the form of credit card debt or student loan debt; (B) the time the debt is incurred can create a presumption regarding whether it is separate or community debt (SEE FC 760, 770, 771); (C) separate debts are generally assigned to the party who incurred them (SEE FC 2625); (D) but student loans are generally assigned (FC 2627) based upon the rules set forth in Family Code 2641; and (E) the assigning of these debts could be considered by the Court when it sets any spousal support Order (SEE FC 4320(b) & (e) and SEE FC 2641(d)). So if your spouse took out student loans and you used some of the money to pay for your rent and to buy food, a portion of the student loan likely is a marital debt that both spouses are liable for.

Like any other form of investment, not all student loans generate the same results. Family Code 2641 allows the marital/community estate to be reimbursed for the payment of loan(s) (or the direct payment of tuition, etc.) that substantially enhances the earning capacity of a party (SEE AGAIN FC 2641(b)(1)). That statutory language could mean that loans taken out and/or community funds spent on a great art, dancing, photography, or music course that never results in any job or pay increase might not get a reimbursement. Conversely, community funds spent to get a technical certificate that results in an immediate new job with better pay could stand a much better chance of getting a reimbursement. The nuances in between these extremes is where a good divorce lawyer does their work, characterizing that education as either ultra valuable (if counsel represents the party seeking reimbursement) or describing it as a failed investment that yielded no benefits (if counsel represents the party who got the education). Counsel works best with these type of issues when there are good written records to support the chosen theme.

If both spouses attended school during the marriage, the court will take into account the efforts of one spouse to support the other when deciding how to divide up the student loan debt. For example, if the wife borrowed money to pay for school and living expenses, but later worked to put her husband through school so he would not need any student loans, the court could set off a portion of the later community payments towards husband’s education against wife student loan debt(s) (SEE FC 2641(c)(2)).

If your divorce involves a significant amount of student loan debt, it is essential to contact a qualified Bay Area divorce lawyer who can advise you on the best strategy for obtaining a fair divorce settlement, and which written records you should try to locate to prove up your claim(s). There are many factors involved in dividing debts during a divorce, so it’s crucial to have someone on your side who understands the finer points of California divorce law.

How Does Having Joint Custody Affect Child Support?

Among couples seeking information about San Jose child support laws, it is a common misconception that joint custody of children from the marriage means that neither parent is liable for child support payments. There are several factors that determine whether a parent needs to pay child support, so it is quite possible to share custody of the children and still have one parent paying child support.

Consider the case of President and owner of In-N-Out Burger, Lynsi Torres. Ms. Torres is the youngest female billionaire in the United States. Even though she has joint custody with her ex-husband, Richard Martinez, she has to pay $19,000 a month in child support for her eight-year-old twins. She also pays for the cost of the private school for the children.

Ms. Torres pays child support because she has a higher income than her ex-husband, so he is less able to provide for the financial needs of the children even though they share custody. The fact that she inherited her money, and her money is her separate property that her ex husband could not get in the divorce does not stop the Court from considering her income when it sets child support. If they each had salaries that were roughly the same, then it is possible that neither parent would be responsible for child support.

Another common situation resulting in confusion over child support liability is when parents are listed as having joint custody, but one parent spends 60% of the time with the child and the other has the child for 40% of the time. Even if your incomes are equal, the parent spending less time with the child may owe child support.

The two primary factors driving the calculation of child support in California are the incomes of the parents, and the amount of time each parent spends with the child(ren). There are other factors, like whether there are any other children that must be supported, and/or whether either parent has assets that might not be earning a return. An experienced attorney can help you estimate what child support should be if you provide the right information.

If you have joint custody and there is a significant earning discrepancy between you and your ex, it is crucial that you contact an experienced San Jose child support attorney to learn more about how your situation affects child support liability. Without professional legal assistance, you could easily end up paying more child support than necessary or find yourself struggling to provide for your children without the support payments you are legally entitled to receive.

The Benefits of Shared Parenting

One type of custody arrangement where both parents spend roughly the same amount of time caring for the children after finalizing their Santa Clara divorce is called shared parenting. Obviously this type of arrangement won’t work if you and your ex live in different states or if one of you travels frequently on business. However, there are several reasons to seriously consider this option if it’s possible for your family.

Regular visits allow a child to keep in contact with a parent, but shared parenting provides an opportunity for the child to experience the day-to-day bonding that is crucial for a long-term positive relationship. Even though having a child move back and forth between two different homes can be challenging, the opportunity to see each parent as a fully capable adult role model is priceless.

Shared parenting requires both parties to communicate with each other on a regular basis. This can be uncomfortable in the beginning, but will eventually strengthen your relationship with your ex. Even though you are no longer married, shared parenting may allow you to develop an amicable relationship. This will reduce the tension in your household and ultimately benefit your children.

In many homes, childcare is the single largest monthly expense. If you and your ex work opposite shifts, shared parenting may allow you to greatly reduce or even eliminate the number of hours your children spend in daycare each week. Another benefit of shared parenting is that you’ll have a defined period of “me” time each week to relax and focus on personal pursuits. Having time to decompress will make it easier for you to fully focus on the needs of your children when they are under your care.

If you and your ex are interested in shared parenting, you will need an experienced Bay Area family law attorney to develop a custody agreement that protects both of your rights.

Using a Private Investigator to Collect Past-Due Child Support

Going through a divorce is never easy, but the experience is much more difficult when your ex refuses to pay the child support ordered by a San Jose family court. There are many government safeguards in place to help parents collect the child support that they are owed. Unfortunately, however, cases still fall through the cracks.

If you don’t feel like you’re getting results from your local child support collection office, you may want to consider hiring an independent private investigator who specializes in child support cases. A private investigator can help you locate the non-paying parent and find information regarding his or her income and assets, but it is not a good idea to hire an investigator who wants to act as a collection agency. A private investigator who offers to collect your money for you will normally take a significant percentage of the money that is collected as his or her fee. In fact, some investigators will take as much as 30-40% of what you are owed. It is a much better idea to take the information the investigator provides you and hand it over to your local child support collection agency, or your attorney. If the agency knows where to find your ex, it is much easier to have his or her wages garnished.

The information a private investigator can find for you may include:

Aliases your ex is currently using
His or her place of employment
Information about any motor vehicles he or she might own
Information about any property he or she might own
Bankruptcy history
Criminal history
Professional licenses he or she currently holds

If you are interested in hiring a private investigator to help with child support collection issues, you should first discuss your plan with your San Jose family law attorney. He or she can tell you if this strategy is a viable option for helping to collect the money that you are owed. Some attorneys may even be able to recommend an investigator who has gotten good results for them in the past.

The Law Offices of Thomas Chase Stutzman a Professional Corporation

Category Archives: Child Support