Basic Facts About Child Support
San Jose Child Support Lawyer
All parents have an obligation to financially support their children until they become emancipated. The question is almost always asked first of a family law attorney "How much will I receive in child support" or the reverse being "What is my exposure".
First a basic understanding of what is looked at. Child support is calculated based on the respective incomes of the parties and how much time they spend with the children.
But, just what is income? Income to quote the IRS is, section 61(a) of the Internal Revenue Code, "gross income as income from whatever source derived, including (but not limited to) "compensation for services, including fees, commissions, fringe benefits, and similar items." This includes wages, commissions, benefits paid by your employer or any other form of compensation. Additionally, the court may find that there is additional income if a parent is living rent free or has reduced rent with a friend or relative, is being provided funds by another person to help with bills, or any other source which reduces the cost of living for the parent.
A starting point at determining income is by paycheck stubs and tax returns. In a dissolution action or a child support matter, both parents must file and serve on the other party completed income and expense declarations. The income and expense declaration must be fully completed and filed with the court along with a proof of service showing it was served on the other parent filed with the court. As an attorney in Santa Clara County, I want to see and my client is entitled to that last three paycheck stubs as well as the last two years income tax returns.
If there is a situation where one parent refuses to work and is able to, income can be imputed to the other parent, however, that requires a showing that the person is able to work and there is employment available for that non working parent. The best way to impute income is by a work efforts order coupled with a vocational evaluation.
Once income has been established, the court will input into the DissoMaster calculation the filing status of each parent, the number of children the order addresses as well as any income tax deductions. The deductions allowed are the cost of health insurance a party pays, any uninsured medical expenses of the party or the children that a parent pays, any interest or mortgage payments and any taxes for real property. The court is also allowed to provide for a hardship deduction for children not connected to the proceeding before the court but where there is a court order making a child support order on a unrelated case. Lastly the court will also include any daycare expenses the parents are incurring on behalf of the children.
Daycare expenses and uninsured medical expenses of the children are to be shared equally by the parties. If a parent incurs medical expenses which are not covered by health insurance and actually does pay that expense they are entitled to be reimbursed « from the other parent. However, the parent requesting reimbursement must submit the proof of payment of the medical expense to the other parent within 30 days of paying for the medical expense. Then the other parent must reimburse the parent requesting reimbursement within 30 days. Failure to request reimbursement timely may result in a waiver of the right to reimburse. Failure to reimburse may result in the court ordering you to pay, ordering to you pay the other parent's attorney fees and may find you in contempt of court.
The other main question asked of family law attorneys is how long do I have to support my children? Both parents must financially support thier children until they are emancipated. In California that is the age of 18 if they have graduated from highschool, or upon graduation from highschool if the child is 18 years of age and still attending highschool. Other reasons to terminate child support would be if the child dies, marries, becomes emancipated by court order, or joins the military. Once a child becomes emancipated there is no further legal obligation of a parent to support their child.
All child support orders are enforceable in the courts of The State of California. Intentional or willful failure to pay child support once it has been ordered may result in a contempt action being filed against the non paying parent.
It is important to also understand that parents cannot contract away the right of a child to receive child support. Parents may agree to what is known as a below guideline order, if and only if they both agree that the respective incomes of the parents are sufficient to meet the needs of their children. Far too many times I see clients who want a "permanent" child support order. This is not possible. The court will not make a order of that type. All child support orders may be modified by a request for order to modify child support upon any change of circumstance.
Contact San Jose Child Support Lawyer Merrisa L. Coleman-Bishop.