Divorce Attorney Overview: Child Support

Here are some of the questions our experienced divorce and child support attorneys hear the most about divorce and child support laws in San Mateo County. Although the answers below are a correct statement of various general principles of California Child Support law, please remember that your case must be analyzed under its own particular set of facts.

Who pays child support?

According to California Family Law, every parent has an obligation to support their children suitable to that child’s circumstances. This applies when a couple gets a divorce, is separated or has never been married but break up.

How long do I have to pay child support?

Unless the parents agree otherwise, or in some cases involving incapacitated children, each parent has a duty to support their child, generally until the child reaches the age of eighteen, is married or dies. There is an extension of this duty where the child is unmarried and still in high school and not able to support themselves. In such a case, the duty to pay child support continues until the child graduates or turns 19, whichever occurs first.

I don’t think it's my child; how do I make sure I don't have to pay?

If you suspect you are not the father of the child (and who else would be asking this question?) you must act fast and request a blood test to determine paternity within two years of the child’s birth. If you don’t do so, you will lose this defense and the child may be presumed to be yours—meaning you’re stuck paying the child support for someone else’s child! Especially in cases like this, our experienced divorce attorneys will make sure the judge has what they need to make the right decision.

I think I’ll have to pay child support. How much will I have to pay?

A great question, but one with no simple answer. This is because, although California has adopted a state-wide uniform guideline for child support, its calculation is very complicated and must be figured out using a computer. Generally, however, the formula looks to both parents’ net monthly incomes (gross income minus allowable deductions) and the timeshare each parent has with the child(ren). Our experienced attorneys will aggressively pursue the best possible child support arrangement, going at this yourself can mean paying or getting an unreasonable amount.

What is the most important factor the courts look to in determining the amount of child support that I’ll have to pay?

Generally, timeshare is critical. The more time the child is in your physical custody, that is more time you spend directly supporting the child, which in turn satisfies your obligation to pay support. This is why (again speaking very generally) where both parent make relatively the same net income and have 50/50 visitation, neither parent will be obligated to pay child support to the other. This applies in cases of divorce, separation or when parents have never been married. People who pay the highest levels of child support for their net income level or those who have little to no timeshare with the child.

I’ve been served by the Department of Child Support Services with papers requesting that I pay child support. What do I do?

Make sure you respond within thirty days of being served! One of the greatest tragedies is for a parent to get served with a governmental request to pay child support and they ignore it or otherwise don’t respond to it. Then, when the deadline to respond has passed, the Department of Child Support Services will request the Court to enter a judgment of default entered against you and for the court to enter a proposed judgment (which they conveniently prepared and served on you) which—not surprisingly—is calculated so as to obligate you to pay the maximum amount of child support. Because you failed to answer or respond, the court will enter the default. The next thing you know, you are having your wages garnished for a child support order you never had a chance to contest.

I believe I am overpaying child support. What can I do to have my obligation lowered?

The court always has jurisdiction to review support orders. But the court can do so only upon a showing of a material change of circumstances. Such circumstances include, but are not limited to, making less or more income compared to when the original support order was entered; increase in timeshare with the child; a showing that various add-on support expenses, such as child care, are no longer occurring or are no longer legally qualify as add-on support expenses.

I lost my job and can no longer pay my support. What do I do?

If there is an existing child support order in place, you must file a motion to modify your support based on this change of circumstance. Unless you do so, the court has no authority to lower your support, no matter how genuine and sympathetic your financial situation. I've seen too many parents crushed by giant back child support payments. They could have avoided it if they'd acted right away and asked the courts to lower the amount.

I just can’t afford to pay this amount and I’m not going to.

You can do that, but your life, as you know it, will be significantly changed. Once there’s a child support order in place, the courts and the government (if your support case is being handled by the department of child support services) have various means of enforcing your child support obligation, including have you charged with contempt of court and put in jail, suspending your California driver’s license and/or any professional license issued to you by the State of California. Furthermore, if you owe more than $2,500 in child support arrearages, you will not be permitted to apply for or renew your passport until you pay off those arrearages.

I just came back from Court and am now ordered to pay an amount of support I can’t possibly pay. What can I do?

It depends on the basis for the court’s decision. Was this amount reached after a hearing or trial or after a voluntary settlement? If it was pursuant to a settlement, you’re probably stuck with it unless and until you can prove that your financial circumstances or timeshare with the child have changed. If after a hearing or trial, you may be able to file a motion asking the court to reconsider its decision-but such a motion will be granted only under very limited circumstances. If such a motion is not available to you, your best bet will be to go to the court of appeals to get the justice to which you believe you are entitled.

• Please contact our experienced divorce and child support attorneys today to discuss your specific case.