According to the Huffington Post, non-custodial parents owe $19.2 billion in delinquent child support payments in California. At least part of the reason for these incredibly high arrears is the unemployment situation. Child support payments that are set when the parent has a good-paying job are left unpaid once that parent is laid off. The question many financially struggling parents are wondering is: How do I get my child support payments recalculated?
The algebraic formula for calculating guideline child support found in Fam C §4055(a) brings us back to high school math class: CS = K [HN – (H%) (TN)]. The components of the formula are (Fam C §4055(b)(1)):
- CS = child support amount;
- K = amount of both parents’ income to be allocated for child support as set forth in Fam C §4055(b)(3);
- HN = high earner’s net monthly disposable income;
- H% = the approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent; in cases in which the parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child; and
- TN = total net monthly disposable income of both parties.
The child support amount that this formula spits out stays in effect until something changes. The “something” includes the paying parent’s income; as a payer’s income waxes and wanes, so should the child support obligation.
Here’s how to get a request for child support payment modification rolling:
- Prepare an order to show cause (OSC) or notice of motion. An application to a court to modify child support can be made though either an OSC or notice of motion. An OSC requires a judge’s signature and has the effect of actually ordering the parties to appear in court on the date set for the hearing, which may be desirable depending on the unique circumstances of the case. An OSC or notice of motion is brought using, respectively, the mandatory form Order to Show Cause (Judicial Council Form FL-300) or Notice of Motion (Judicial Council Form FL-301).
- Attach an Application for Order and Supporting Declaration. A party seeking to modify a child support order must complete and attach an Application for Order and Supporting Declaration (Judicial Council Form FL-310) to his or her OSC or notice of motion form. Be sure to mark the check-off boxes that concern all the relief being requested, including Item 3 on child support (if only “guideline” support is sought, no specific support amount need be entered; if support sought deviates from what would be ordered under guideline, specify amount). Check box for attorney fees and costs to preserve the ability to receive them. Check Item 10 of Form FL-310 (“facts in support of relief requested”) and, if the space on the form is insufficient to provide detailed facts, attach a separate declaration by the applicant.
- Prepare separate declaration. It is common practice in family law cases to include a declaration setting out in more detail the reasons for the requested relief and providing more detail to the court of the background and facts. This declaration should be succinct, using subheadings to break up multiple issues, ensuring that it is easy to read and understand.
- Prepare an Income and Expense Declaration. As part of an application to modify child support, a current Income and Expense Declaration (Judicial Council Form FL-150) or Financial Statement (Simplified) (Judicial Council Form FL-155) must be served and filed as part of the moving papers, and corresponding blank forms must be served on the opposing party. Cal Rules of Ct 5.118(b), (e). See Cal Rules of Ct 5.128.
- Consider preparing supporting memorandum. Although points and authorities are not required, as such, in a family law order to show cause application or notice of motion unless ordered by the court (see Cal Rules of Ct 5.118(a)), a written memorandum might be helpful in some cases. If the issues are nuanced or if requesting alternative forms of relief, a concise brief containing points and authorities can often assist a bench officer in understanding the case and in reaching a decision.
As the Huffington post article explains, legislative efforts to reduce the interest on delinquent child support payments, which would provide some relief to unemployed parents who owe back child support payments, have consistently failed. It’s up to those parents to seek modification in court.
For everything you need to know about the grounds and procedure for modifying a child support order, go to CEB’s California Child and Spousal Support: Establishing, Modifying, and Enforcing, chap 4. Also check out CEB’s program Presenting a Support Case (Without a Forensic), available On Demand.
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