As many individuals who are paying child support are well aware, the laws in this area are highly regulated and public policy supports active collection of the money for the care of a minor child. The reach of the government is very broad. For example, they can garnish your wages, intercept tax refunds, lottery winnings and failure to pay can mean negative reports on your credit and non-renewal of your passport. Many assume that back due child support payments (“arrears") are dischargeable in bankruptcy court. This is not true. This debt is due until paid in full or a waiver (for non-assigned arrears only).
The laws support the strong policy that a parent’s first and principal obligation is to support his/her minor children. Each parent has equal responsibility to support the child. The court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.
The state has a mandatory uniform child support guideline to determine the amount of child support. The court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child’s best interest or the application of the guideline is unjust for reasons enumerated in the Family Code. The reasons, however, are very limited, giving the court very little discretion.
FACTORS USED IN CALCULATING CHILD SUPPORT:
(1) Gross Income: includes commissions, overtime, bonuses, rental income, pensions, or benefits: such as unemployment, disability, worker’s compensation, or social security. If your pay varies from month to month, the court will likely average your monthly income. Some become underemployed, and as such, the court will consider a parent’s earning capacity. For example, if you are licensed to practice law but instead becomes a bartender because you do not want to pay a high child support, the court can consider what a reasonable lawyer would be making in your general area. (2) Visitation: percentage of physical custody (3) Deductions: mandatory union dues, health insurance for you and children, job related expenses; any other court ordered child and spousal support, FICA, SDI. (3) Tax filing status (4) Financial hardship such as extraordinary health expenses and uninsured catastrophic losses.
The court can further order additional child support for educational or other special needs of a child and for travel expenses for visitation. The court must order that the non-custodial parent provide health insurance for the child if it is available to you at no or reasonable cost.
MODIFICATION OF A CHILD SUPPORT ORDER:
Let us assume you had just been laid-off. You must immediately file a motion to modify your existing child support order. A modification requires a “change of circumstance(s) since the last order. If any of the factors described above change, you have a right to have your case heard. However, it is up to you to bring a motion for a modification and a court order must take place before a monetary change can occur, But, many simply stop paying the current order and never file a motion. As a result, arrears build up and the “nightmare" that accompanies nonpayment of child support begins.
Arrears are past due child support. It is created when nonpayment of a court order occurs. Interest by law accrues at a rate of 10% as each payment becomes due. If you have arrears and depending on the circumstances of your case, a reduction may be negotiated. Generally, arrears owed to the local child support agency for public assistance reimbursement may be negotiated downward if certain requirements are met. This is very difficult to achieve. An easier route would be if the custodial parent never received government assistance and all the monies are owed to her. If this parent agrees to a pay-off amount less that what is owed, the government rarely interferes with the arrangement.
It is critical that the court accepts the pay-off agreement. Having a fair and efficient attorney establishes to the judge that offensive tactics were not used to have the custodial parent waive substantial monies.