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Can my ex-husband avoid paying child support? If so what arguments can they make?

Bakersfield, CA |

I just filed for divorce after being separated for two years, I also filed for child support. He received the documents and told his mom (mind you hes 24 and he lives at home), his mother then called me and asked what right do I have asking for child support, and that why on the documents I put that he works jobs where he gets paid under the table in order to avoid paying child support. This was true, but he was fired from that job about two months ago and recently found other work where he got an actual paycheck. I dont work and am a -fulltime college student and have our child monday-friday I dont drink, dont go to parties and I live at my parents home as well. He on the other hand smokes marijuana, drinks, and spends no time with his daughter, and she also tells me he is never with her.

My daughter also tells me her father is always out with her friends and just leaves her with his mother a majority of the time. His mother also told me she would be getting an attorney to argue the child support, I really dont know what they could argue seeing as how im not a bad person and I really dont do anything other than spending time with my daughter and going to school.

Attorney Answers 2


In California, child support is also based on the state's guideline calculations. The biggest factors in those calculations are: (1) The amount of income the mother earns, (2) The amount of income the father earns, and (3) The amount of time you each spend with your daughter.

Given that your daughter spends most of her time with you, and that the father is working and you are not, he will almost certainly have to pay you child support.

However, because you are going to school and not looking for work, he can try to argue that you should be "imputed" with income (this means that the court pretends that you are making a certain amount of money since you should be able to earn that amount if you were actually looking for work). This is a difficult argument for him to win on though, especially if you are close to finishing your degree. You can argue that it makes a lot more sense for you to complete your degree so that you have a higher long-term earning potential, which in the long-run, will make the child support amount go down, since you will be more able to support your daughter with your own earnings.

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I'm a CT attorney, and not a CA attorney, and I'm sure the CA attorneys will weigh in. However, in my state there are child support guidelines which the judge is required to follow unless there is "deviation criteria" present in the case. As to his subverting your claim by his failure to work "over" the table, in my state, an order can be based on someone's earning *capacity* instead of their earnings, if they are willfully underemployed or otherwise attempting to avoid responsibility. Good luck.

**Disclaimer: Charles F. Basil is licensed in CT only. Any opinion given is based upon the general principles of law, but local laws may vary. This opinion is given for informational purposes only, and no attorney client relationship has been formed. Opinions on a website can not and should not supplant the advice of an attorney presented with all of the facts in your jurisdiction.**

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