I LOST MY JOB AND CANNOT AFFORD TO PAY CHILD SUPPORT. WHAT AM I SUPPOSED TO DO?
Due to coronavirus and the current economic situation in the world many people have started losing their jobs.
We all want to be good parents and support our children. But what you are, as an obligor/payor parent, supposed to do if you lost the job.
Don’t panic, child support may be modified, please keep reading this article for a better understanding.
A final judgment in a family law proceeding is not the end of litigation between parties.
Many orders can be modified long after the judgment’s finality such as child support, spousal support, child custody and visitation, etc.
Child support orders are modifiable at any time, as the court deems necessary even if support orders are based on parties’ agreements.
The Family Law Court’s jurisdiction to issue and/or modify child support orders continues even after the final judgment throughout the child’s minority as a matter of law. Parents cannot, by an agreement, restrict the Family Law Court’s authority to modify child support. Such agreements per se are unenforceable.
BASIS FOR MODIFICATION:
As a general rule, Family Law Courts won’t modify child support orders unless there has been a material/substantial change of circumstances at the time the modification is sought. This rule applies to any form of child support order, whether it is a temporary or permanent child support order.
A factual change of circumstances (for example: decrease or increase in either party’s income available for support) is required for filing a Request for Order to modify child support.
There are no certain guidelines for evaluation whether circumstances have sufficiently changed to warrant a child support modification. The determination is made on a case-by-case basis. Each case stands or falls on its own facts, but the overriding issue is whether a change has affected either party’s financial status.
Examples:
Obligor’s reduction in base salary was a change of circumstances warranting modification of child support (Marriage of Mosley(2008) 165 CA4th 1375, 1387, 82 CR3d 497, 505-506).
In light of obligor’s overall wealth, decline in his employment income did not constitute change of circumstances sufficient to warrant modifying child support order (Marriage of Usher(2016) 6 CA5th 347, 350, 210 CR3d 875, 878).
If you lost your job and are unable to find another one then file a Request for Order asking to modify child support as soon as possible, don’t wait.
Additionally, the Family Law Court has discretion to impute earning capacity income to an unemployed or underemployed parent, consistent with the children’s best interest, so long as that parent in fact has a measurable earning capacity (ability and opportunity to work or otherwise earn) (Marriage of Hinman (1997) 55 CA4th 988, 998, 64 CR2d 383, 389).
An obligor/payor parent seeking a support reduction because he/she lost his/her job bears the burden of proving he/she lacks ability and opportunity to earn (Marriage of Bardzik, supra 165 CA4th at 1304, 1308 83 CR3d at 81, 85).
RETROACTIVITY:
The Family Code authorizes a child support modification order to be made retroactive to the date of filing the notice of motion or OSC for modification (or to any subsequent date), see Family Code Section 3653(a).
However, Family Code Section 3653 states that retroactivity is expressly made subject to Federal Law (42 USC 666(a)(9)), which sets the date of service of the notice of motion or OSC for modification as the ultimate boundary on retroactivity.
Keep it in mind and, if you are planning to file a Request for Order (RFO) asking to modify child support, serve your RFO for modification of child support on obligee/payee as soon as possible upon filing it.
SPECIAL RULE FOR MODIFICATION BASED ON UNEMPLOYMENT:
A child support modification and/or termination based on the obligor’s or obligee’s unemployment shall be made retroactively to the later of the date of service of the notice of motion to modify and/or terminate child support or OSC for modification or the date of unemployment, unless the Court finds good cause not to make the order retroactive and states its reasons on the records.
NO RETROACTIVE MODIFICATION OF ARREARAGES:
Child support orders are not modifiable as to amounts (arrearages and interest on arrearages) accrued before the date of filing the notice of motion to modify and/or terminate child support or OSC for modification, see Family Code Sections 3603 and 3651(c).
Additionally, it is important to know that once a year after entry of a marriage dissolution, legal separation or paternity judgment providing for support, either party may demand from the other party production of a current income and expense declaration accompanied by the prior year’s federal and state personal income tax returns.
If you want to verify your ex-spouse’s income then you need to mail to him/her a copy of the forms FL-396 and FL-150.
The forms can be found here:
https://www.courts.ca.gov/documents/fl150.pdf
https://www.courts.ca.gov/documents/fl396.pdf
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