I have represented clients whose exes owe them over a quarter million dollars in back support.  Support arrears in the tens of thousands of dollars are not at all uncommon.  If you’re the parent whose struggling to make it with your job, with your kids in daycare, and with a parent who just doesn’t help, you’ve come to the right place.  This blog will point you toward some resources that will help you to get paid.

WHAT NOT TO DO:  WITHHOLD VISITATION WITH THE OWING PARENT:

I’d like to start off with a mistake that many parents make when the other parent doesn’t pay.  It’s tempting, as the custodial parent, to say, “hey, if he’s not stepping up to the plate he shouldn’t get to see his kids.”  This is a mistake because the courts are careful to separate the child custody issues from the financial issues.  The courts see the parenting plan as a child-focused way to have both parents involved in the child’s life.  Judges and custody mediators believe that it’s good for children to have access to both parents.

In fact, if you have a case going with the Department of Child Support Services, the regular family law judge will not even hear the child support issues.  Child support will be heard separately in the “support division,” a separate arm of the Superior Court devoted to cases being enforced by the Department of Child Support Services.

The family law judge, charged with deciding the child custody and visitation issues, is not interested in who’s financially better off or who is paying or not paying the support.  Raising the financial issues during a custody hearing can actually damage your custody case by making you look less “child focused” in the court’s eyes.

THE DEPARTMENT OF CHILD SUPPORT SERVICES IS YOUR ALLY IN COLLECTING BACK CHILD SUPPORT

The Department of Child Support Services (“DCSS”) is a government agency whose sole reason for being is collecting child support.  An application to establish a DCSS case can be made and submitted online.  Your case will be assigned to a case worker who will collect information and investigate the parties’ earnings.  (Note:  all links in this blog are for San Diego County.  Google your local county for its DCSS application.)

When you initiate a DCSS case, you will assign your right to receive child support to the county where you live, and that county will file a petition and a motion before the support division court to either initiate, modify or enforce your child support order.  Once the judge issues a support order, DCSS will take care of issuing the wage assignment or garnishment of the payor’s wages, known as an “income withholding order.”  DCSS can also request that the payor’s driver license be suspended pending the payment of arrears, and can even file a request that contempt of court charges be filed against the delinquent party.  The judge has the power to punish willful non-payment of support with 5 days in jail for each missed payment, known as a “count.”

A child support order has the effect of a “judgment” by the issuing court.  For each payment missed, the court tacks on annual interest of 10 percent, known as “post judgment interest.”  That’s why child support debt is so bad—it carries a very high interest rate, and to boot, it’s not discharable in bankruptcy.

In conclusion, while you’re killing him/her with kindness on the child custody front, you can still use DCSS as a took to get what you need from him/her.  Until next time,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post WHAT TO DO WHEN HE/SHE WON’T PAY THE CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

To reiterate what I told the payers, basic guideline child support is calculated based on a formula in the Family Code, and you can get a rough idea of what you’re entitled to by using the Department of Child Support Services’ online support calculator.  Before you go there, have the following data ready:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

If you don’t know the earnings of the other party, put in an estimate.  Use the Gross, before-tax monthly income in the calculator, not the net.  The program will account for the taxes, and if you enter an after-tax amount you will not get an accurate child support calculation.

But what about those little extras?  Child care?  Clothing? Extracurricular activities?

The basic child support number is meant to include ordinary child-rearing expenses such as housing, clothing, food and etc.  So if you go before the court arguing that dad has not bought a new pair of shoes for a year, know that it probably won’t matter.

But there are certain child support add-ons which are mandatory.  But you must ask for these at your child support hearing or make sure they are included in your child support order.  The mandatory add-ons are described in Family Code section 4062 as follows:

(a) The court shall order the following as additional child support:

(1) Child care costs related to employment or to reasonably necessary education or training for employment skills.

(2) The reasonable uninsured health care costs for the children as provided in Section 4063.

Whenever the law uses the word “shall,” it means that what follows is mandatory.  The court must award these costs against both parents.  You can expect, in most cases, to receive a mandatory reimbursement of half of child care costs related to employment or necessary education, and half of uncovered medical.  The court does have the discretion to apportion the costs between the parents, but the usual apportionment of mandatory additional support is 50-50.

But wait, there’s more.  Section 4062 has a subsection (b) which reads as follows:

(b) The court may order the following as additional child support:

(1) Costs related to the educational or other special needs of the children.

(2) Travel expenses for visitation.

The word “may” means that the court can award them, but it doesn’t have to.  But it doesn’t hurt to ask.

Generally, the court will award such educationally-related costs if they are “extraordinary,” that is, over and above the normal educational expenses.  They can include ball fees for that student that’s athletically gifted.  They could include a tutor for that student struggling with Attention Deficit Disorder or high-functioning autism.

It’s important to understand that both parents have a legal duty to financially support their children.  The court can impute income to a party that refuses to work or would rather live on a park bench than pay his/her support.

Next week I’m going to write about what to do if the other parent just won’t pay.  How do you get an order of child support, or enforce the one that you have?  Until next week,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post CALCULATING CHILD SUPPORT FROM THE SUPPORTED PARENT’S POINT OF VIEW appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

If you’re that guy that would rather live on a park bench than pay your support, I can’t help you.  But if you want to step up to the plate and be a parent, there’s a part of the guideline calculation you can impact and control.  That side is the number of hours you have with your son or daughter.

Elements of the Child Support Calculation:

Let’s look at the data that go into the support calculation, which are these:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

Control What You Can.

The more hours per week that you, the paying parent, spend with the child, the lower your support will be.  But, you say, “she’ll only let me see them on weekends.”  Or, “my court orders only give me 20 percent time (or less).

But here’s where your advantage lies:  Scientific studies have shown that, all other factors being equal, spending time with the non-custodial spouse (usually dad) leads to better adjustment of children to divorce, less delinquency, less drug use, better school performance, and, in short, better kids.  If you think about it, this should be obvious.  Much gang activity and disrespectful behavior toward women can be traced to fatherlessness among children.  Men teach boys how to be men and respect women.  Women teach their daughters how to be adult women.  But it is fathers who, by their conduct, can teach a young woman how a man ought to treat her.

Your family judges know this, and this is why the trend is toward joint custody arrangements.  Such arrangements, between adequate parents, are better for children than one involved parent and one garnished parent.

How to Push the Parenting Time Needle in Your Direction:

The best way to do this is to step up to the plate and be a parent.  Listen, your kids crave your attention, approval and discipline, even if they don’t show it outwardly.  So be a parent.  Volunteer at their school.  Offer to assist their basketball coach.  Get to know their friends.  Plan special events and trips with them.  Make memories.  It’s as simple as that.

It’s a win, win, win, because this focus benefits you, the paying parent, the child who gets a loving parent, and the other parent gets a child who is happy, healthy and easier to manage.  In my experience, courts are generally sympathetic to parents who rearrange their lifestyles around parenting.  They will tolerate a lower level of earnings and not impute higher income to you if you are really stepping up to the plate.

And you may just find that giving to your kids in ways other than money can produce a deeply satisfying relationship with them.  I’ve been able to do this in my own divorce situation.  You can, too.

It’s important to recognize that deepening your parent-child relationship is a marathon, not a sprint.  You’re not going to be able to just go to court after years of neglecting that relationship and get an order of 50-50 parenting time.  You have to lay the foundation by taking the parenting time you have right now, and using it to build that relationship.

Doing this, you’ll lower your payments, and get something in return that money can’t buy:  The love and gratitude of your kids.  I urge you to…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post WHAT YOU NEED TO KNOW IF YOU ARE A CHILD SUPPORT PAYOR: SAGE ADVICE FROM A CARLSBAD DIVORCE LAWYER appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Have you ever been laying awake at night wondering how much you’re going to have to pay in child support?  Or perhaps you’ve done some child support calculations and you’re wondering how to live on what’s left?  Whether you are married or are a never-married parent, child support is one of those unavoidable burdens, much like death and taxes.  But be of good cheer; there are some arguments and strategies that you may not have heard of, and this month I’m going to do a series on exactly how child support is calculated, and also some things you can do to either reduce your burden or collect what you need to raise those kids.

Let’s begin with the legal roots of the child support obligation.  In all 50 states, and all territories of the United States, the law recognizes the duty of parents to financially support their children.  About 20 years ago child support became a hot-button political issue, as candidates for public office and even for president made political hay from a perceived national concern over “dead-beat dads.”

This political pressure resulted in the system we have today, as the federal government forced every state to adopt guidelines governing exactly how much a non-custodial parent must pay a custodial parent in child support.  Even in joint custody cases, if you make more money than the other parent, you can expect to pay some support, and, if you’re doing really well and the non-custodial spouse is down and out, you could get hit with child support even if the other parent only has 20 percent time with the kids!

California’s state-wide guidelines are contained in Family Code section 4055.  Reading this code section is a cure for insomnia, and you would have to be a mathematician to figure out your support just by reading the statute.

Therefore, enterprising software writers have come up with computer programs to calculate child support.  When you go into a family law or support division courtroom in California, you’ll find that the judges have the support calculators loaded on to their laptops, and county law libraries will normally have the software as well.  In San Diego county, where I practice, the program of choice is called DissoMaster(tm) and I, like all  practitioners, own a license for this software.

If you require a child support calculation, contact my office and we can run a DissoMaster calculation for you.  If you’re reading this at midnight, try the online calculator by clicking here.

If you are a paying parent, it’s best to run support calculations while sitting down.  I have seen numerous cases of what I refer to as DissoMaster shock, a condition where a speechless parent first learns what the State of California will require them too pay.  The fact is, those little urchins are expensive, especially when they become teenagers.  Recognizing this, the guidelines provide for some rather high numbers.

The good news for payers is that all is not lost.  There are ways to reduce your liability for support.  But it’s difficult, as the guidelines are mandatory in the vast majority of support cases.

Therefore, in the posts to come, I’d like to discuss exactly what the law is, and in particular, how the court treats various claims of hardship in support cases.  But I’d like to go further and give you some arguments you can make in court, and some long-term  strategies that will help keep the money in your pocket.  Stay tuned …

Very truly yours,

Thomas D. Ferreira, Esq.

The post WHAT PARENTS MUST UNDERSTAND ABOUT CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

I have a question for those of you who are divorcing, have a paternity case pending or a support case pending:

Have you ever had some disagreement with your soon-to-be-ex, and vowed that you were going to take him/her to court?  Maybe you then had second thoughts later, because court is expensive and complicated.  What is an appropriate issue to stand pat and file that Request for Order?  And When should you suck it up and go on with life?

If your children are in actual danger because of the other parent’s abuse or neglect, you’ve got to act.  But what if he’s usually more than 15 minutes late to the transition point, and never calls ahead to say he’s running late?

THE COURT IS A BLUNT INSTRUMENT:

Our court system comes from merry old England, and is designed primarily to transfer money from one pocket into another and to determine the guilt or innocence of those accused of crimes.  These tasks are “all or nothing” situations.  “The court finds that you operated your automobile in a negligent manner, causing the plaintiff to suffer damages.”  Or, “We, the jury, find the defendant guilty of murder in the first degree.”

In family law, the court is asked to manage an ongoing relationship.  Courts generally struggle with the management of relationships.  When children are involved in divorce or paternity proceedings, the court is asked to act as “super-parent,” to resolve disagreements when parents can’t agree on what’s best for the children.  But your judge wasn’t there to see what happened, and the evidence is often conflicting.  When the issue is trivial, the courts expect the parents to behave “like adults” and not involve the court in petty disputes.

The court is good at making sweeping decrees, such as “I am awarding joint legal custody to the parents, with primary physical custody to the mother.”  The court will usually adopt one of the form, recurring visitation schedules, such as a 2-2-3 or alternate weekends.  The court can find that visits with a parent must be professionally supervised if there are issues of gross neglect or abuse.

The court is less able to regulate more minor issues such as whether to enroll Junior in football or baseball, or whether he should be allowed to grow his hair long.  In family law, we lawyers sometimes call this type of issue a “garbage issue.”

THE CHILD WELFARE TEST:

My clients often ask me to file for emergency orders over hygiene issues or possible drinking and partying.  When doing so, I ask this question:  is there a Child Welfare investigation pending?  If not, why not?

In my experience, the trend in family law is to give generous parenting time to “non-custodial parents” (usually dads).  Before you ask for full custody of the children and no overnight visitation to the other parent, ask yourself if that other parent is “adequate.”  Not, “is she a good parent,” but is she an “adequate parent?”  Today’s family courts usually grant liberal, overnight parenting time to “adequate parents.”  An inadequate parent is one who has committed an act of child neglect, such as placing the child in danger, or perhaps one with serious substance abuse problems.

MAJOR IN MAJORS AND MINOR IN MINORS:

If you just don’t like the books dad reads to the kids, or think his new girlfriend is a bad influence, I have three words for you:  “let it go.”  This is not just good co-parenting advice; it is good litigation strategy.  If you are the tolerant one and support the other parent’s relationship to the children, you’re more likely be found to be the parent who supports “frequent and continuing contact” with the other parent.  I have handled many cases where a parent lost significant time with the children because they nitpicked about the other parent’s world.  You’ll do better if you support frequent and continuing contact with the other parent.

It’s a paradox.  If you want more time with Johnny, you have to be supportive of his parenting time with dad or mom, and not raise a bunch of ticky-tacky issues with the court.  The court wants you to cooperate in raising Johnny.  Save the big guns to deal with major problems, such as that move-away situation or problems of neglect and abuse.

This isn’t easy.  It requires large amounts of grace and patience.  But it pays off over the long haul.

And if you want to commiserate, you can join our local Divorce University Online Meetup group or contact Tammy at 760-990-4752 to participate via video.

Stay tuned for next week’s blog, and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post CHILD CUSTODY SECRET: KNOWING WHEN THE COURT CAN HELP YOU, AND WHEN IT CAN’T. appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.