Don’t assume you don’t have to pay child and/or spousal support just because you were laid off!
Most of here in California are victims of these tough economic times in one way or another. Layoffs and unemployment claims seem to be increasing week after week. If you have been laid off, or if your unemployment benefits have expired, you now face the reality of having to make support payments that were based on your prior level of income, and you may not be able to afford these payments.
What you need to understand is that even if you were laid off, you must continue paying support at the ordered level.
Mike lives in Monterey, CA and was divorced in Contra Costa County, CAfour years ago. He has two daughters and was ordered to pay $750/month in child support, based on his income at the time of $70,000/year. Regrettably, Mike was laid off three months ago and has not made any support payments during that time because he lives only on unemployment benefits. His ex-wife has now brought a Contempt of Court motion against Mike for failure to pay his support, and Mike filed a motion to modify child support in response.
Because Mike waited to seek modification until after he was three months past due, he owes his ex-wife $2,250 ($750 x 3 months). In addition, he may have to pay some of his ex’s attorney fees for the cost of bringing the motion. Had Mike filed for a modification of support immediately once he was laid off, the Court would have had the authority to retroactively modify the support payments that were due.
Important Lesson: don’t wait until you get behind on your support payments and find them mounting out of control. Take action immediately.
For more information about child support, spousal support and other California family law issues, please contact attorney Gary D. Sparks.
The Courts generally don’t look too kindly on a parent or spouse who quits work to avoid his/her child support obligation, and the Court has the discretion to impute income in that situation.
The burden to support minor children may not fall entirely on one parent.California Family Code §3900 emphasizes that each parent has an equal responsibility for the support of his/her minor children. Parental obligations under the law are specified clearly in California Family Code §4053: (1) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. (2) Both parents are mutually responsible for the support of their children. (3) Each parent should pay for the support of children according to his or her ability. It is rare to find a parent who doesn’t have some “ability” to support his or her children.
In Re Marriage of Regnery is the landmark case in California that set the standards for how and when the family court court impute, or attribute, income to a parent regardless of his/her actual income. Just recently, the appellate Courts refined the Regnery standard in what is now the preeminent case regarding imputation of income in California: In Re Marriage of Bardzik.
In order to convince the Court that it needs to impute income to the other parent, you will first need to establish for the Court that the parent has the ability to work, and then that the parent has the opportunity to work. This generally involves looking at his/her education, training, certifications, resume, job and income history, etc., and also proving up job openings in the newspapers or some of the well-known online job resources (Monster,CareerBuilder, etc.). If you meet your burden of showing his/her ability and opportunity to work, including the possible income of those opportunities, then the burden shifts to the other parent to prove up why s/he can’t do that work.
It’s not a fun process, but it’s doable. You may want to discuss this in person with a competent family law attorney to ensure you don’t miss out on every opportunity to prove your case.
For more information about child support and other California family law issues, please contact attorney Gary D. Sparks.