Child Support
Both parents are legally responsible for child support of their children whether or not they are married. Income is an important factor in figuring out how much child support is owed. However, some parents intentionally reduce their income in order to avoid child support. In that case, courts will “impute” income to parents.
What is Imputed Income?
Imputed income is income that is attributed or credited to a parent even though the parent is not actually earning that amount. Judges impute income to ensure that children’s needs are met and to deter parents from shirking responsibilities.
If a parent has been earning good income in a stable, full-time job and suddenly states that they make no income, the judge is going to want to know why. If it comes to light that the parent voluntarily quit work, the judge may impute income. To determine the amount of imputed income, the court would likely use the most recent amount of income reported.
Courts look at three factors to determining whether to impute income:
- willingness to work
- opportunity to work, and
- ability to work
It’s important for the judge to understand the reason for the unemployment or underemployment because it is important in determining whether to impute income.
How Much Income to Impute?
The parent’s earning capacity or income potential is determined and used when the courts are deciding how much income to impute.
Education, work skills, and employment history are used as a way to determine income potential. Willingness to work is determined by behavior or recent actions such as: searching for jobs, sending out resumes, and going to interviews. Opportunity to work takes into account the availability of appropriate job opportunities.
Courts determine how much to impute by reviewing salaries for a job that parent would qualify for as well as the parent’s ability and opportunity to work. Occasionally, if it’s too difficult to determine income potential, the court will impute minimum wage.
Retroactive child support are payments that were missed or not paid in the past. This means the child support order isn’t just from a present or future date, going forward but a retroactive one going backward to start at a previous date. If a parent has failed to pay child support for the retroactive time period (before a permanent child support order was issued), the judge may order them to make up for the missed payments.
Retroactive child support starts once the judge determines if the parent and child are eligible for this type of order. The judge looks at the following factors when deciding:
- The non-custodial parent had hidden some of their finances in order to avoid paying support
- The non-custodial parent acted in a way to delay a final hearing on child support
- The court concludes that there is a demonstrated need for retroactive support
If determined that there is a need for the non-custodial parent to pay retroactive child support, the court will determine the retroactive date trough the date the first child supply order was issues. It can also go as far back as the date of the parent’s separation.
The petition is typically what starts a divorce or parenthood action. That means the start date of the first California child support order can go back to the date that was filed even though the Court hearing is after that. For example, a petition for divorce is filed on January 1. It is then served. A request for order for child support is then filed on February 1. The hearing is on March 10. When the court makes its child support order at the hearing, they can make it retroactive to February 1 or March 1.
There are exceptions to this for example, when that initial petition (or other document that started the process) wasn’t served on the other parent within 90 days of its filing, then the retroactive start date is the date it was actually served.
Unpaid Child Support
When it comes to unpaid child support in a divorce wages can be garnished, or seized without a court judgment. If a parent fails to make their child support payments, the state has the right to collect that person’s wages through their employer, or through other means.
If your spouse owes unpaid child support, you have a number of ways to collect the money from them set by the California Department of Child Support Services. The various types of earnings that can be garnished for unpaid child support payments are:
• Wages in the form of salary, tips, bonuses, retirement and vacation pay, commissions and regular overtime
• Dividends, rents, royalties, patent rights, payments due for services of independent contractors
• Payments from workers compensation, temporary disability benefits
• Regardless of source, any other payments or credits due or becoming due
In a California divorce, if the garnished wages do not cover the entire amount owed, the custodial parent may seek other ways of obtaining garnishment by property seizure. Property seizure is the act of law enforcement officials taking property which includes: houses, boats, cars, motorcycles, corporate stock, and more. This only occurs after the parent has had various amount or types of notice to pay the child support and still has not paid. The custodial parent must keep in mind that the levels of garnishment are 50% if supporting another family, 60% if not, and 65% if the spouse child support payment is 12 weeks past due. Regardless, under California law, the spouse having to pay child support must pay the amount agreed upon by the court during the divorce, no matter what kind of payment they make or is lawfully seized.
There are other exceptions to the past date retroactive child support is issued. To gain more information on these exceptions and other questions regarding child support and divorce, contact Brett Thorsteinson, your trusted and experienced divorce and family law attorney.
