Category Archives: Child Support

Protecting Assets When Your Spouse Owes Child Support

You love your fiance, but don’t love don’t love that (s)he owes back child support. Is there a way to make sure you aren’t paying for his(her) children from another relationship? You bet!!

Your income is, under normal circumstances, only relevant to determine the tax bracket. But what about checking and savings accounts? You need to keep your account separate and under your name only. As long as your spouse’s social security number is on an account, it can be levied to pay back child support.

What about taxes? If you are expecting a tax return, you can either file separately or file an “Injured Spouse Allocation” form with the IRS, form 8379. This results in whatever portion of the tax return that represents his portion is retained, but you are sent the remainder. The problem is that you cannot file your taxes online, but must mail them in with that form. Here is a link to the instructions to determine if this option works for you:
https://www.irs.gov/pub/irs-pdf/i8379.pdf

For further information, it is advised that you contact a tax attorney who can advise you regarding what you should claim.

WARNING!! 2 YEAR LIMITATION TO DISPUTE YOU ARE THE FATHER!

The 2 year time limits are contained in Family Code Sections 7612 and 7646

FAMILY CODE 7612

a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.

(b) If two or more presumptions arise under Section 7611 that conflict with each other, or if one or more presumptions under Section 7611 conflict with a claim by a person identified as a genetic parent pursuant to Section 7555, the presumption that on the facts is founded on the weightier considerations of policy and logic controls. If one of the presumed parents is also a presumed parent under Section 7540, the presumption arising under Section 7540 may only be rebutted pursuant to Section 7541.

(c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage.

(d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person.

(e) Within two years of the execution of a voluntary declaration of paternity, a person who is presumed to be a parent under Section 7611 may file a petition pursuant to Section 7630 to set aside a voluntary declaration of paternity. The court’s ruling on the petition to set aside the voluntary declaration of paternity shall be made taking into account the validity of the voluntary declaration of paternity, the best interests of the child based upon the court’s consideration of the factors set forth in subdivision (b) of Section 7575, and the best interests of the child based upon the nature, duration, and quality of the petitioning party’s relationship with the child and the benefit or detriment to the child of continuing that relationship. In the event of a conflict between the presumption under Section 7611 and the voluntary declaration of paternity, the weightier considerations of policy and logic shall control.

(f) A voluntary declaration of paternity is invalid if, at the time the declaration was signed, any of the following conditions exist:

(1) The child already had a presumed parent under Section 7540.

(2) The child already had a presumed parent under subdivision (a), (b), or (c) of Section 7611.

(3) The man signing the declaration is a sperm donor, consistent with subdivision (b) of Section 7613.

(g) A person’s offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but shall not be determinative, as to the issue of legal parentage in any proceedings regarding the establishment or termination of parental rights.

(h) This section shall remain in effect only until January 1, 2020, and as of that date is repealed.

(Amended by Stats. 2018, Ch. 876, Sec. 47. (AB 2684) Effective January 1, 2019. Repealed as of January 1, 2020, by its own provisions. See later operative version added by Stats. 2018, Ch. 876.)

FAMILY CODE 7646

(a) Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the biological father of the child.  The motion shall be brought within one of the following time periods:

(1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.

(2) Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity.  Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575 .

(3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period from January 1, 2005, to December 31, 2006, inclusive.

(b) Subdivision (a) does not apply if the child is presumed to be a child of a marriage pursuant to Section 7540 .

(c) Reconsideration of a motion brought under paragraph (3) of subdivision (a) may be requested and granted if the following requirements are met:

(1) The motion was filed with the court between September 24, 2006, and December 31, 2006, inclusive.

(2) The motion was denied solely on the basis that it was untimely.

(3) The request for reconsideration of the motion is filed on or before December 31, 2009.

FAMILY CODE 7611- Presumptions regarding Parent-Child Relationship

A person is presumed to be the natural parent of a child if the person meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:

(a) The presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

(b) Before the child’s birth, the presumed parent and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

(c) After the child’s birth, the presumed parent and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) With his or her consent, the presumed parent is named as the child’s parent on the child’s birth certificate.

(2) The presumed parent is obligated to support the child under a written voluntary promise or by court order.

(d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.

(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.

(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.

(Amended by Stats. 2013, Ch. 510, Sec. 3. (AB 1403) Effective January 1, 2014.)

Tax Depreciation on Investment Property Cannot Reduce Child Support

Did you know that the depreciation a party claims on their taxes for a real estate investment is supposed to be added back to the gross income for child support calculation purposes?    It is not considered a business expenditure by the Courts, and therefore cannot be used to reduce the amount of income available for support calculations.  Because support calculations are based on the total amount of income available to each party, depreciation of property would provide one party with more income because the deduction would not be accounted for.   This can be useful information for a party whose ex-spouse has substantial real estate investments.

Calculating Guideline Child Support

Figuring out how much child support you should be paying can sometimes be a frustrating task.  First, you will have to figure out what the gross income is of each parent.  The tax deductions and tax rate will make a significant difference, so be sure those numbers favor your side.  The Department of Child Support Services has an online calculator and manual available at:

http://www.childsup.ca.gov/Resources/CalculateChildSupport.aspx

As a general rule, the more you pay in taxes, the less you pay in support.  If you don’t understand this, you can shoot yourself in the foot, so to speak, when you discuss the matter with the opposing side.  I have had clients who have looked at the calculations and begin to state, “Hey wait, I am not single and one!  I am married and four!”  Had I not been there to stop them from finishing their sentence, they would have just talked themselves into paying a few hundred more every month.

When hiring an attorney, it may be important to make sure that they understand how the calculations work.  I have had extensive training in taxation matters, and this knowledge has saved my client on more than one occasion.  I once was employed by a firm where the main attorney had over 10 years experience.  She was trying to stipulate a judgment based on an incorrect calculation.  The case was handed over to me to finish, and I noticed that the calculation was based on the opposing party’s income that was nontaxable in the “other taxable” box.  The result was my client owed $800 less every month than her own attorney (my boss) was trying to stipulate to!  I immediately called opposing counsel and asked them to correct this error, or there would be no agreement.  My client was elated!  The whole point is that you should not assume your attorney knows the calculator program well, even if they have been practicing many years.  Ask questions if you don’t understand.

Departure from Guideline Child Support – Family Code 4057

Guideline child support, while normally ordered by the court as the amount of child support owed, may not be appropriate in certain situations.  Family Code Section 4057 allows a departure from guideline Child Support amounts when ordering the guideline amount of child support would be unjust or inappropriate in a particular case. This requires an extensive knowledge of case law.  If you believe that other income or factors should be considered by the court that do not fall under the category of traditional income, you should hire an attorney to represent you.