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.

• 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.

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.

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.

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.

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.

The recent divorce of Ashton Kutcher and Demi Moore provides the perfect example of how role reversals can happen in a marriage. Demi earned more when the couple tied the knot, but Kutcher’s career has taken off in recent years while hers remains at a standstill. Estimates place Kutcher’s earnings at $12 to $13 million per year, compared to $5 million for Moore. Additionally, Kutcher is said to have made several smart investments in tech start-up companies and has a $20 million per year contract for his role on Two and a Half Men. Since California is a community property state and the couple does not have a prenup, Moore is presumptively entitled to 50% of whatever Kutcher made during the marriage.

An invalid prenup is just another piece of paper. Experienced divorce lawyers will strongly recommend that both parties have legal counsel when drafting and negotiating the prenup. Having just one attorney handle the prenup increases the chances that the prenup will be no good. There is an inherent conflict of interest between the soon to be spouses, and an attorney generally cannot represent two competing parties, who each have exactly opposite interests, at the same time. Additionally, there can’t be any coercion involved. A prenup that is not signed willingly could be set aside. Waiting until the last minute (less than seven days before the wedding) to ask your future spouse to sign the agreement may create a legal presumption that the prenup is invalid.

If you have questions about whether or not your prenup is enforceable, it’s best to speak to a qualified divorce attorney in San Jose. There are many variables to consider when challenging a prenup, so it’s crucial to have an experienced lawyer on your side.

For sole custody to be considered in the child’s best interests, you will need to prove that your spouse is an unsuitable parent. For example, your spouse’s history of past abuse or neglect would give the court ample reason to award sole custody. A history of domestic violence may also cause the court to limit a parent’s access to his or her children. Claims of abuse and/or neglect must be substantiated, however. False claims made for the purpose of obtaining sole custody can leave you open to serious legal penalties.

Sole custody can be awarded if your spouse is mentally ill and can not safely care for the child. Mental illnesses that would impact a parent’s ability to provide appropriate care include paranoid schizophrenia, bipolar disorder, dementia, or uncontrolled hallucinations. Depression or anxiety disorders being successfully controlled with medication would not qualify.

A drug or alcohol addiction that your spouse refuses to seek treatment for may be reason to seek full custody if you can provide proof of how the addiction has affected his or her ability to care for the child.

If your spouse has deliberately abandoned the child, sole custody should not be a problem. Abandonment includes refusing to provide financial support or physical care for the child, as well as not maintaining contact with the child for an extended period of time. Abandonment may be cause for permanent termination of parental rights under certain circumstances.

If you wish to seek sole custody of your child, it is best to hire a San Jose family law attorney with extensive experience in custody cases. Do not attempt to handle a custody dispute on your own. The laws regarding child custody can be quite complex, so it’s important to have someone on your side who can advocate for the best interests of you and your child.

There are a few different ways that the division of the marital home is typically handled during a divorce.

• If the couple has children, the house will often go to the custodial parent. Judges in Santa Clara County regularly consider the best interests of the children and the children’s need for continuity and a stable status quo supported by continuing to live in the family home. This option is most likely where the numbers make it possible, but the Court has jurisdiction to award a Deed of Trust to the out parent and allow the custodial parent to continue living in the home even when the numbers do not quite work.
• If no children are involved and one spouse wants to keep the marital home, he or she will likely have to buy out the other spouse’s interest in the property. This can require an independent appraisal of the home to determine its worth and/or an agreement on its value.
• Selling the marital home is another option, but this can be difficult in a poor real estate market. Sometimes, if spouses have a reasonably amicable relationship, they can continue to own the house jointly and rent it out until the market improves enough for them to sell.
• Another option is to continue joint ownership, but to allow the children and the custodial parent to continue living in the home. Then, when the children are grown, the couple can sell the house and split the proceeds. An adjustment to the spousal and/or child support order(s) to reflect the out patent’s contribution of their part of the home may require some complicated math, but could be done.

Of course, while the Court is limited in its creativity in crafting a division of the marital assets the parties are free to agree to more creative things. For example, because retirement funds will normally be taxed when withdrawn in the future the Courts normally will not Order a direct set off of retirement funds against a different type of asset, like a home that might not be taxed upon a sale. The cliche is that the Courts will not trade apples for oranges.

The parties can agree to a swap of retirement funds for home equity. Regularly men are worried about losing his retirement, and women are worried about losing their home, so a form of emotional gravity can make this sort of swap more likely.  (NOTE: This counsel is aware that in the modern era of political correctness practically anything that that sounds like gender bias, sexism, and/or the pronouncement of a gender based stereotype could come under attack. At the same time; however, it is this counsel’s simple observation that men regularly fear/worry about the loss of their retirements, and women regularly fear/worry about the loss of their home. Those fears observed have in fact been most clearly pronounced in line with the suggested gender based variation. It is unfortunate that the object of blogging, the dissemination of ideas and the truth, will occasionally run directly into the sharpened teeth of misdirected political correctness. The facts as I have observed them are described above.)

An experienced Bay Area divorce lawyer can offer some guidance for how to handle the division of the marital home during your divorce. Your counsel will not make presuppositions about what you want or need, that is up to you. You should be careful to look over the numbers and your new budget before making decisions that could lead you into financial trouble later. You may also want to consider seeing a financial planner. A financial planner can provide expert guidance in the best way to divide assets after a divorce while also helping you develop a budget that will keep your post-divorce finances on solid ground.

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.