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Recent Posts in Enforcement of Support Judgments Category
| April 06, 2010 |
| DCSS INTERCEPTED my TAX REFUND with my new Husband. |
| Posted By Thurman Arnold |
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Q. The district attorney's office intercepted our tax refund to pay past due child support. If we divorce do I get any of this money back?
A. You might.
Thistax refund was community property and although the government in this case had the right to take what was owed from the community, the community has a right to be reimbursed from the spouse who owed the debt if and only if the debtor spouse had separate income available at the time to pay the debt (as it arose) but which was not applied to satisfy the debt. Family Code Section 915(b). |
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| March 24, 2010 |
| I am remarried. How does my NEW MATE'S INCOME affect my SPOUSAL SUPPORT or CHILD SUPPORT OBLIGATION? |
| Posted By Thurman Arnold |
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Q. I remarried in August, 2009, and my new wife is a doctor. She has one child from her prior marriage and I have two. I am still paying my former wife alimony and child support even though the kids we have together live at our home 40% of the time. I have been hit hard by the economy and we largely depend upon my wife's medical income to make ends meet. Now my ex is threatening to take me back to court to increase my support based upon my new wife's income, while my own income is down from when the court last decided it. My new wife is upset at the idea that my ex can learn anything about the medical practice or income. What should I do?
A. If there has been a material decrease in your income since the time of your last order, you may safely file a support modification motion to lower your child support and to lower or possibly terminate your spousal support. Whether that is advisable based upon your numbers has nothing to do with your new mate's income, and should not cause you to hesitate - but again, it does depend on the actual respective numbers between you and Wife 1, which you did not provide me. You also need not worry about W1 filing a motion to increase (you can't stop her, but she will not win based on W2's earnings). Maybe you should give her this link so she will think twice.
California law is quite clear that new mate income cannot generally be considered against you in ordering or modifying child or spousal support. The controlling California Family statute is section 4057.5.
In the normal situation, Family Code section 4057.5 leaves the Court no discretion to consider your new wife's earnings, period. You do not need to report those earnings on your FL-150 (Income and Expense Declaration). This is a statement of California legislative policy effective in 1993 when this section was added to the Family Code. This is true for both spousal and child support.
However, section 4057.5 does contain an exception for the "extraordinary case" which the statute makes clear is intended to address situations where "where excluding that income would lead to extreme and severe hardship to any child subject to the child support award" or where "a parent ... voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income." Even if the court were to find a severe hardship on the children of marriage number one, it would be required not to impose a severe hardship on your wife's child by reallocating her income to you for purposes of supporting your two children.
In practice, so far, Courts almost never find facts sufficient overcome this clear statutory prohibition. So far there is no published California appellate decision defining these extraordinary circumstances. No doubt one day someone will so abuse this protection and hide behind it that we will get a reported decision that fleshs out how bad someone needs to behave before the protection is lost. But "extraordinary" means really extraordinary. In the average case, your new Wife has nothing to be concerned about.
With regard to attorneys fee awards, however, there is authority for an argument that new mate income may be considered in granting or denying an attorney fee request, but the odds are against a judge doing that.
Incidentally, this section also applies to income from nonmarital partners as well as new spouses. In one reported case (IRMO Loh), a trial court was reversed for inceasing dad's child support obligation after the mother produced photos of the father's "lifetyle" to show imputed nontaxable income in the form of his new girlfriend's contributions to him, since she paid for all his toys.
The new mate question is a subset of the "imputed income" situations where a father or mother may quit work or reduce hours because they are relying on their new mate to contribute the difference. That is not likely going to be an extraordinary case, but W1 can separately seek to impute income to you on the basis that you have a higher earning capacity than you are exercising. Earning capacity and imputed income is a blog for another day. Also, I will mention here that another argument exists in favor of W1 that has nothing to do with the right to obtain the records or income of W2: Equalizing the lifestyle's of the two households where yours is rich and grandiose and W1 is impoverished (an extreme example) pursuant to FC section 4057(b)(4).
The tax returns are privileged as they relate to your new wife's medical practice. For instance, if she is a medical corporation (which I recommend be set up), she will almost never be forced to divulge those records. Even as to your joint returns, you may be entitled to redact the information concerning your new spouse or have the Court review them in camera (meaning they are not turned over to the other side). Your former mate is entitled to see your side of the tax returns, however, and they are not insulated from scrutiny simply because you filed joint with the Doctor Wife. If you don't file jointly, your former wife will almost certainly never get her hands on your new wife's Married Filing Separately (MFS) returns. Structuring things this way may or may not be advisable and you should consult a tax accountant.
An interesting twist here is that because you marry a higher, wealthy earner, your taxes actually increase because under federal IRS (and the California FTB), you are responsible for one-half of your new mate's income - and this is true even if you don't file jointly. One case (County of Tulare vs. Campbell) has held that this additional tax you become liable for can form the basis for a reduction in your support because you have less net income available for support after the tax hit is deducted. Hence, based on these tax consequences you may have an additional argument for decreased support - although a Court may try to deny you some discretionary offset to even the score since this feels a bit unfair to the spouse who is primarily supporting the children and so lessen the downward modification.
The take-away: So long as you are not playing games, have not intentionally reduced your income by relying upon your new mate's income, and there is no really extraordinary difference in the two households, your new wife's income is just not relevant and so it is protected. |
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| January 24, 2010 |
| Who OWES CHILD SUPPORT? |
| Posted By Thurman Arnold |
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Q. Who is responsible to pay child support in California?
A. As used in the California Family Code, "child support" is an obligation owing on behalf of a child or an amount owing to a county for reimbursement of public assistance paid on behalf of a child. The concept also includes past due support and arrears, and includes maintenance and education. Parents have an equal responsibility to support their child in the manner suitable to the child's circumstances. Family Code section 3900.
Q. Do grandparents owe child support?
A. Grandparents have no legal duty to support grandchildren, except in cases where they have a right to actual physical custody or court ordered visitation.
Q. What if I wasn't married to the Mother?
A. If you are the biological parent or otherwise become the legal parent of a child, you have a duty of support. However, it does need to be established that you are the bio dad or a legal or de facto parent before support can be ordered. In cases involving unmarried parents, this is typically accomplished through a [VDP Voluntary Declaration of Paternity] per FC section 7573. Often the DCSS (Department of Child Support Services) or other LCSA (local child support agency) files a paternity action to establish support for a mother who has requested support enforcement services or is receiving county aid.
If you are never identified as the bio parent for a child, you will not be found to owe support absent due process. However, you if you know are the parent but fail or refuse to support your child, you may have committed a crime.
Q. What if my parental rights have been terminated by the juvenile or family courts?
A. Parents whose parental rights have been terminated by court degree, or whose children have been adopted out, cease to have a support obligation (although they may continue to owe support for prior periods) as to those child after the date of the decree.
Also, there is no support obligation for an emancipated minor child. But a child who has been emancipated by court order can become unemancipated upon their own application, or upon the county's application, if they are considered indigent and unable to care for themselves.
Q. What if my new spouse owes child support? Is this my responsibility?
A. The community property is liable to pay support debts predating your marriage, but there is a right of reimbursement. Indeed, the community liable for all separate debts of either spouse. However, there is a specific right of reimbursement in qualifying situation as set forth in FC section 915.
Q. Who enforces child support?
A. A parent can enforce it. A guardian can enforce it. The county on behalf of the child can enforce it, and can enforce it on its own behalf to be reimbursed for monies paid to another on behalf of the child.
Q. How are out of state child support orders enforced?
A. These are enforced pursuant to the Uniform Interstate Family Support Act.
Q. What if my parents have been supporting my kids while I was in rehab?
A. You have no obligation to reimburse them absent either (a) an agreement to do so, (b) an existing court order to do so; or (c) the county has provided benefits, in which case the reimbursement is to the county. FC section 3951.
Likewise, you have no obligation to reimburse the other parent absent one of the above.
Thurman W. Arnold III
http://www.ThurmanArnold.com |
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| January 24, 2010 |
| Can CHILD SUPPORT ORDERS be made RETROACTIVE? |
| Posted By Thurman Arnold |
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Q. Can child support orders be made retroactive in a court proceeding?
A. Except when the county has paid benefits, or possibly where a third party has provided necessaries like food, shelter, or clothing for the benefit of a child living with you under certain circumstances, the earliest a support order can be made effective is the date any initial pleading is filed in a court proceeding. FC Section 4009.
However, if you were not served with the papers within 90 days of that initial filing, support can only be ordered retroactive to the date a motion seeking support was filed.
Most judges will order support retroactive to the first or the fifteenth day of the month. This means that if you file for support on April 2nd, your order may only go back to April 15 but if you filed March 27th, your order would become effective on April 1. You should time your filing to maximize retroactivity.
To the extent your partner has contributed monies to your support voluntarily before the order becomes effective, they will usually receive a credit off-set against the support award for the time period in question (i.e., if support commences April 1, they will not likely receive credits for payments made prior to that time). These payments do not need to be paid to you directly for the credit to apply, as where a mortgage or rent payment is made.
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| December 20, 2009 |
| ENFORCING SUPPORT ORDERS in California |
| Posted By Thurman Arnold |
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Enforcing California Child Support and Alimony Orders
As a private person, you have a host of remedies. Some require the assistance of an attorneys, other may not depending upon your relative interest and motivation. These include:
Wage Assignments
In all cases where California support orders are issued (or even if out of state support orders are being enforced here), a Wage Assignment Order (aka earnings assignment or income withholding order) must issue which includes arrearages if applicable and once they have been determined. Family Code section 5230. In order to be effective, these must be served by at least first-class mail upon the obligor's employer. Not later than 10 days thereafter, the employer is required to commence payments of the court ordered amounts so long as and only to the extent that they do not exceed 50% of the employee's net income per pay period. This must continue until the employer receives notice of termination of the order. These orders take precedence over any other kind of non-support assignment or wage garnishment. An employer who wilfully fails or refuses to honor the earnings withholding order is liable for the amount it should have paid over. Family Code section 5241.
Support Contempt Proceedings
A party who wilfully refuses to comply with any court order, and specifically an order for the payment of child support, spousal support, or an attorney fee order, may be guilty of contempt of court. Family Code section 290.
As to support, each monthly failure to pay all or any part of the court ordered support is one count of contempt, and each count subjects the contemnor to up 5 days in jail and a fine of up to $1,000. Because contempt potentially involves jail time, they are difficult and expensive to prove but they can be a very effective remedy for getting the attention and compliance of a party who values their freedom. You will not succeed without an attorney who has actual experience litigating them.
So long as you do not allege more than 35 counts of contempt, the other party will not be entitled to a jury trial but in any case if they do not have private counsel the family court is going to appoint the Public Defender's office to represent them in the contempt proceedings only. There is a 3 year statute of limitations for pursuing contempt for nonpayment of support and attorney fees; there is a two year statute of limitation barring all other forms of contempt of court orders.
Writ of Execution/Receiver
Support orders may be enforced like any other money judgment. This means that you may obtain a Writ of Execution and enforce a money judgment against bank accounts, or property, or even ask that a receiver be placed in a business owned by the obligor to collect money as it comes in.
Interest; Bankruptcy; Renewal of Judgments in Support Cases
Support orders accrue interest at 10% from the date of each installment becomes due. Family Code section 155. Courts do not have discretion to relieve the obligor of the interest. Interest is a serious matter, since at 10%, principal doubles every 7 years.
Unpaid support cannot be discharged in bankruptcy.
Support orders never die. California is one of the toughest states upon deadbeat fathers and deadbeat mothers. You do not need to renew a support judgment in order to preserve it [Family Code section 291], unlike a 10 year rule of limitations for renewal of judgments that applies for almost all other types of civil money judgments. There is no defense for not paying a valid support order except possibly one - where the party entitled to the support order disappears and actively hides the minor child for whom the support is made during the entire period of minority, then perhaps an obligor may succeed in having a court vitiate the support order. However, the defense of laches (an unreasonable delay in enforcing a legal right) may be asserted against the State in cases where welfare was paid out for the benefit of the other spouse or a minor child but a long, long time passes before any agency undertakes action to recover it.
Attorney's Fees in Collecting Unpaid Support
You may also be able to recover your attorney's fees incurred for your enforcement action pursuant to Family Code section 3557.
UIFSA in California
The Uniform Interstate Family Support Act has been adopted in every state, and similar uniform rules for collecting support have been adopted in many foreign jurisdictions which allow for enforcement of orders here. The purpose of this uniform act is to augment and expedite spousal and child support enforcement, and even the collection of related attorney fees, wherever a support obligee (a parent who owes per a support order in any state) moves or can or might be found. This way, to the extent that someone relocates between States or simply works in a neighboring state, and whether or not they are avoiding a support obligation, support orders from any issuing state can be enforced quickly and efficiently.
If support orders issued in Maricopa County, Arizona need to be enforced in Riverside County, California, certified copies of the out of state decree are merely filed and registered here and immediately any and all of the remedies outlined above become available. Even if the support obligor doesn't live or work here, but owns property in this State, orders can issue that can enforced against personal property or real estate. The California UIFSA statutes are found at Family Code sections 4901 et seq. You don't need to be a California resident to take advantage of these rules.
Under certain limited circumstances child support orders issued in another state may be modified in California. This means that if a payor parent moves here, once the out of state support order is registered here it may be possible to modify it under more favorable California laws. Conversely, if parent and child live here and the payor parent does not but wishes to avail themselves of California law, they too may be able to seek a modification here. Once that occurs, California becomes the new jurisdictional situs for further support modifications and enforcement. However, although spousal support can be collected here, whether to modify it always remains under the control of the original state where orders were issued.
Child Support Civil Penalty
This may be an extremely effective tool for collecting delinquent child support in California: Thechild support civil penalty statutes found at Family Code section 4721 - 4728. Essentially if the statutory procedure is correctly followed, each and every unpaid installment of child support will incur a civil penalty of up to 6% percent per month. There is a maximum 72 percent of the original amount that can be imposed, but this 72% interest in a year! If this doesn't get the deadbeat parent's attention, it is hard to imagine what will.
To avoid the child support penalty once the requesting party has given proper notice of the delinquency, the obligor must pay the past due support money within 30 days. If they do not, the obligee (party who is owed) may file a motion for a judgment for the principal amount plus penalties and interest. This presents the last opportunity for the payor parent to work out a solution and convince the Court it is not fair to impose the penalty. Thereafter, the judgment is enforceable in the same manner as any other.
Child Support Security Fund
Another useful support collection tool in California is found beginning at Family Code section 4560. This allows the Court to order that the child support payor deposit into a court controlled account up to one year's worth of future support. This account is then used to guarantee the normal flow of monthly child support monies to the recipient parent. Family Code section 4570 provides that if monthly installment thereafter is more than 10 days late, the court shall order the recipient parent paid from that account and that the account be replenished. Obviously, this method is more likely to enforced as against an affluent deadbeat parent.
Department of Child Support Services Enforcement
If the Department of Child Support Services (DCSS) becomes involved, additional enforcement options come into play. DCSS must enforce orders where custodial parents are receiving State Welfare and other forms of governmental assistance. In such cases, they may also enforce spousal support orders.
Even if you are not receiving governmental aid you may assign your collection rights for child support to the Department and they must enforce these orders free of cost to you. However, they are over burdened, they are a bureaucracy, and they are not your personal advocate. There are pros and cons in utilizing their services.
For instance, they are able to intercept tax refunds and can access tax records that are otherwise confidential or that the other party just refuses to produce. They can force banks to give up information regarding cash flow. They can cause the California DMV to suspend a driver's license. They can take away Passports. They can suspend professional licenses. They can seek criminal prosecution for Penal Code failure to support crimes.
DCSS employees are overworked and underpaid. Still, if you lack funds and access to competent legal counsel, DCSS may aid you.
Thurman Arnold
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