When you first become a parent, time seems to slow down, with long, happy days and nights that seem to go on forever as baby cries for food every few hours. This is just about how slowly time passes, too, at the other end of your kids' childhood, when you're divorced and paying California child support. Will you ever be able to stop making those monthly payments to your ex? The simple answer is yes, you will. But in order to figure out exactly when that will happen, you need a thorough understanding of California's child support system, including when child support terminates and how you can get a modification of the child support order from the court.
Child Support in California
When a couple with minor children divorces in California, the court's most important consideration is the welfare of the kids. Under California Family Code 4053, each parent has an obligation to support their children based on their incomes and the amount of time each spends with the kids. Child support is almost always a part of the equation. That's intended to level the playing field on the theory that a child must share in both parents' standards of living.
California child support guidelines are based on the idea that the parent with whom the children spend most of their time already contributes a lot to maintain them and deserves a financial supplement from the other parent. And even if the parenting time agreement splits the month down the middle between the two parents, the one with the lower income should get financial assistance from the parent earning more money. This is the basic theory of child support in California.
How Is Child Support Calculated in California?
California courts use a mathematically based support guideline to determine child support. You input various factors into the equation, including the number of children, how parenting time is divided between the parents and the amount of money each one earns. The computer program crunches the numbers and then comes up with an appropriate guideline amount, which the law presumes is correct. The judge has authority to deviate from the guideline amounts, but only if there is solid evidence to establish that using the guideline amount is inequitable in a particular case. If the court decides that a deviation is required, the court must set out its reasoning in the resulting child support order.
How to Modify a Child Support Order
Once the initial child support order is made in a California court, the parties must honor it unless and until it is modified. Modification is not difficult, however, if your finances change. You can file a motion to modify a child support order whenever there is a significant change in circumstances involving either parent. For example, if you were earning $5,000 a month at the time of the divorce and then you get laid off, you'll want to ask the court to modify the child support amount as soon as you can. The court can make the reduction in the child support amount retroactive to the day you filed the motion.
What about just reducing the amount of child support yourself? That is not wise, since you will still legally owe the unpaid amounts and you can be held in contempt of court in California for not paying the full support. What if your spouse agrees with you that a reduction is warranted? These type of informal agreements may not stand the test of time, and only a court can modify your legal obligation to pay child support.
When Does Child Support End?
In California, you generally have to pay child support until a child turns 18 years old. However, you must pay even after the child turns 18 if she is still unmarried and a full-time high school student. In that case, you will have to pay child support until she graduates from high school or turns 19, whichever happens first.
There are a few other circumstances in which your California child support obligation ends earlier. For example, the obligation ends if a child marries, joins a branch of the military or is declared emancipated – granted independent adult status – by a court. It also terminates early if the child dies.
You may have to pay for an adult child beyond the age of 18 or 19 if you agree to do so. For example, some parents agree to support a child through the age of 21 if she remains in college. Can a divorced parent be forced to pay for college? No, a parent cannot be forced to pay for a child's college unless it was agreed upon as part of the divorce settlement agreement. If you don't remember whether you agreed to extend child support into your child's college years, read your court order or divorce settlement agreement. Note that if your child is disabled and cannot support herself, your child support obligation may extend indefinitely.
Can Child Support Take My Whole Paycheck?
In California, every child support order comes with an automatic income withholding order. The income withholding order – also called an IWO – is a court order that is served on your employer. The IWO instructs the employer to hold back a specified amount of an employee’s wages for payment of child support. The IWO is officially called Form FL 195, but can also be called a wage assignment, a garnishment order or an income withholding for support order.
Who sends the IWO to your employer? It could be a local child support agency, your ex-spouse or the child support agency from another state, if that's where your children live. The document contains instructions on how much money to deduct from your paycheck and where to send the payments.
Don't worry about it eating up your entire paycheck. Under California law, an employer cannot withhold more than 50 percent of the employee’s net disposable income, unless a higher percentage is expressly ordered by the court. But IWOs don't just apply to your regular paychecks. They can also hit other sources of income from an employer, like bonuses you earn, tips, vacation pay, retirement pay, overtime and commissions.
What Are Child Support Arrears?
Arrears is a curious word that means overdue. When you don't pay the amount of child support you owe on a monthly basis, the unpaid amount is called child support arrears. In California, you owe interest on child support arrears at the rate of 10 percent per year. The interest continues to accrue on unpaid amounts until they are finally paid off by the debtor.
Is There a Statute of Limitations on Support?
A statute of limitations is a period of time in which you can bring a court action. For example, if the statute of limitations on an action is two years, you must file the lawsuit within two years from when the event happened. Is there a statute of limitations on collecting back child support? Some states set limitations periods for collecting child support. These often begin to run from the time the child support obligation ends. However, in California there is no statute of limitations on child support payments.That means that the child support arrears and interest accrued can be collected 10, 20 or even 30 years after the kids are grown and gone. So you can't count on the passage of time to take care of the debt.
How to Enforce Child Support in California
California laws provide a number of ways to help custodial parents collect their child support payments. These apply to both current payments and past-due arrears, as well as accrued interest. One way is with a wage assignment. This is a very common device where the employer of the noncustodial parent is ordered to withhold the child support payment and send it directly to the custodial parent.
Any money received by the parent can be taken for child support arrears. This includes federal income tax refunds, state tax refunds, any property tax credits and all lottery winnings. It also includes workers' compensation lump sum payments that are due to noncustodial parents.
The custodial parent can file a lien against the debtor's real estate holdings or other assets. Parents with overdue child support payments can also have trouble at the DMV. Applications for new California driver's licenses can be denied, as can renewals of licenses. Likewise, applications for any business or professional licenses issued by the state of California can be denied, including a cosmetologist license, state bar membership and a contractor's license. If the debtor parent holds a current business or professional license, this can be suspended or revoked. The parent must pay off the child support arrears before the licenses can be reinstated.
And when parents fail to make support payments, they can also be held in contempt of court. Contempt of court means that someone has refused to obey an order of the court. This can result in serious fines and even jail time. Second and third offenses carry heavier penalties.
Can Child Support Arrears Be Dropped?
A child's parents cannot limit or reduce the court's power to order child support. It seems like it should be within the custodial parent's authority, but in California, it is not. Even if both parents agree to waive child support arrears, it is generally not enforceable. Child support is awarded by the court for the benefit of minor children, not for the benefit of the custodial parent. That means that if a mother and father sign a written agreement to waive unpaid child support, that agreement does not bind the court at all since a parent cannot waive child support arrears. In fact, even the judge cannot modify the amount of child support arrears that have already accrued.
What Is the Compromise of Arrears Program?
Compromise of Arrears Program, or COAP, is one way to reduce the child support arrears you owe, but it is possible only if you owe the arrears to the government, not to the custodial parent. This happens in most cases when the government has provided public assistance financial help to your child or children, and their other parent.
You qualify for COAP if your income and assets are low enough. If so, you can offer to pay a lesser amount than the full arrears and interest, and the government may accept it. You can make a lump sum offer, where you pay one amount, or you can arrange to make payments on the compromise amount of back support. If you sign this kind of agreement, be sure to make the payments as agreed. If you don't, the agreement may be cancelled and you'll end up owing the entire amount again, plus interest.
Note that the COAP program never forgives the total amount you owe in arrears, but only reduces it. The COAP program doesn't affect any monies owed to the custodial parent either, just your debts to the government. You are not relieved from paying your monthly child support and, indeed, regular payments of current amounts is often a condition of the COAP.