|
Child Support Law Questions:
Q: WHY DO I HAVE TO PAY BY WAGE ASSIGNMENT?
A: The Court has the power to issue a Wage Assignment
if requested at the hearing whenever a child or spousal support
order is made. There is no requirement that arrears exist.
Some Counties require a Wage Assignment Form be submitted
before a Dissolution Judgment is processed. The Courts use
wage assignment as a safeguard to protect the receiving spouse
from the paying spouses default.
Back to Top
Q: CAN MY DRIVER'S LICENSE BE SUSPENDED FOR FAILURE
TO PAY SUPPORT?
A: Failure to pay Court Ordered Child Support (even
by a month) can result in your license being suspended. The
State gives the District Attorney the right to contact the
DMV and ask for the suspension when payments become delinquent.
How it works: The DMV notifies you at the address listed
on your license. The notice contains a 30-day warning and
includes a form to be filled out and sent back to the DMV.
Once the DMV receives back your paper work, it will issue
a 90-day provisional license at which time you need to contact
the DA's Office and get your arrears straightened out. This
process does not always work as stated depending on the Counties
backlog. This could be to one's advantage or disadvantage.
Always remember, that if you are contacted by the DA's office
you must clear the matter up with them. If payments are to
be sent to them be sure to do so. Payments sent directly to
the custodial parent will not clear up the matter. Moving
out of state also will not help, because the DMV may place
a hold on your license and the new state will honor that hold.
Back to Top
Q: CAN THE DISTRICT ATTORNEY INCREASE MY CHILD SUPPORT?
A: Any time there is a change of income of either
parent; there is a chance that support may either go up or
down. The court will usually only consider where there has
been at least a 20% increase or decrease in income. Child
support may be reviewed or modified at anytime the court finds
a change in circumstances.
If you can't afford an attorney, you may want to take a trip
down to the Facilitator's office at your county courthouse
and have them help you fill out an Income and Expense Declaration
and run a Disso master in order to find out what guideline
child support should be.
Back to Top
Q: HOW DOES ARREARS WORK?
A: The rules for arrears may differ depending on your
status. One set of rules applies for welfare and one for non-welfare.
The Court also looks at how long the child was hidden and
the efforts made by the non-custodial parent to locate the
child. However, until this is corrected and an amount is set,
you should continue to make payments to the District Attorney's
office for the amount under the original order.
Back to Top
Q: MY EX DOES NOT LET ME SEE MY CHILD. DO I STILL
HAVE TO PAY?
A: Yes, the two are not related. Once you've been
ordered to pay support you cannot discontinue just because
the custodial party is withholding your child from you. There
are other legal avenues to take when visitation becomes an
issue. It is important to keep your child support current.
Back to Top
Q: I'VE ALWAYS PAID MY CHILD SUPPORT IN CASH TO
THE CUSTODIAL PARENT, AND NOW THE DA SAYS I OWE THEM MONEY.
WHAT CAN I DO?
A: If you're going to pay cash, make sure you always
get a receipt. Best advice is DO NOT PAY CASH. Research shows
that at least 25-30% of all AFDC cases involve some sort of
fraud. Just to note, the burden of proof is on the paying
parent to show that money was in fact paid. Without a receipt
this is a hard burden to beat when cash payments are involved.
Back to Top
Q: HOW SHOULD I PAY MY SUPPORT?
A: Always pay via money order, check or if cash, with
a signed receipt by the custodial parent. When making payments
to the DA, they too require money orders or certified funds.
Back to Top
Q: I PAID IN CASH, BUT I HAVE NO RECEIPTS. WHAT
DO I DO?
A: If you paid in cash, then you must produce records,
bank statements, verifying direct deposits to the other parent's
account or any other record that proves you made the payments.
Oral testimony from a witness who can verify those payments
may also work in your favor. Basically, the court needs to
see some sort of proof that the payments were actually made,
or you will probably lose.
Back to Top
Q: DO STOCK OPTIONS IMPACT ALIMONY, SEPARATE MAINTAINANCE
AND CHILD SUPPORT?
A: Stock options do impact payments ordered by the
court. Today stock options are granted to employees more regularly
then they had been in the past. Employers use stock options
as part of their employee's compensation package. Employer-granted
qualified stock options are typically issued at the price
of the company's shares in the market on the date granted.
If the market price increases, then the options have real
value. Once the option vests (typically not for 3-5 years
or even longer), the option holder can purchase the shares
and sell them (most companies place restrictions on this).
Some options may never vest and some options don't hold their
value, making them virtually worthless.
With the way the market is today, the value of stock options
can change dramatically overnight.
If the court values the options as property, and the couple
lives in a "community property" state then the court
will divide that property which is earned during the marriage
as 50/50. Thus, each partner will get his or her share of
the property interest.
If the court values the options as income, the spouse holding
the options may be ordered to pay support based on the income
that derives from the options. The Court takes the position
that the stock holding spouse may choose to liquidate or cash
out those options that were earned or granted during the marriage.
Therefore, the community has an interest in the income derived.
The Court in the past has experienced people trying to shelter
their income in the options to keep it from the non-holding
spouse.
Back to Top
Q: CAN I CLAIM A TAX DEDUCTION FOR MY SUPPORT PAYMENTS?
A: Child Support payments are not tax deductible to
the payer spouse and are not taxable income to the supported
spouse. Spousal support may be deductible by the payer spouse
if the following requirements are met. Payments must be made
in cash, checks or money orders, transfers of service or property
do not count. The payments must be made under a divorce or
separation instrument/order or a written separation agreement.
The spouses may not file joint income tax returns and other
tax agreements must not have been made in prior written agreements
or court orders.
Back to Top
Domestic Violence Questions:
Q: WHEN DOMESTIC VIOLENCE IS INVOLVED, WHAT SHOULD
BE DONE?
A: The victim should retreat to a safe place. Immediate
police assistance should be requested when needed. Local law
enforcement personnel, city and district attorneys may be
very helpful not only in prosecuting the crime, but also in
providing referrals to other local assistance ( ie. shelters,
safe houses, counseling, and legal assistance). A victim should
never try to do it alone. Outside help and support from others
is essential. The typical abuser has a very dominant and aggressive
personality that is both manipulative and controlling. Whatever
your background, a victim of Domestic Violence should not
back away from getting help. Domestic violence does not discriminate
and affects every social class. If you or someone you know
has been abused or is a victim of domestic violence it is
essential that help be sought.
Back to Top
Q: ONCE A RESTRAINING ORDER HAS BEEN FILED, WHAT
IS THE PENALTY FOR VIOLATING IT?
A: Violation of a restraining order is contempt of
a court order. Violation of a valid restraining order may
result in the violator being taken into immediate custody
or jail. The offender may be charged with a misdemeanor or
a felony and may be sentenced or fined.
Q: WHAT IS THE DIFFERENCE BETWEEN A TEMPORARY RESTRAINING
ORDER AND A RESTRAINING ORDER AFTER HEARING?
A: A "Temporary Restraining Order" (TRO)
is normally issued after an "ex parte appearance."
An ex parte appearance is an appearance in court by one party
without the other party being present. The Temporary Restraining
Order (TRO) is an order from the court directing the named
person to refrain form particular acts and to stay away from
particular places. The order is only effective if it is served
upon the person to be restrained. Once the person has been
served an "Order to Show Cause" hearing is scheduled
where both parties will have an opportunity to be heard and
the court will be given additional information to determine
if a more permanent order is needed or the original order
shall be vacated. A TRO usually can be issued the same day
it is requested and it remains in effect until the Order to
Show Cause hearing. The hearing is typically scheduled to
occur within 15-20 days after the date issued.
Once the hearing takes place, the court may determine that
a more permanent order be established. That is referred to
as a Restraining Order After Hearing. The order in effect
may be for a specified time, even for years. The Restraining
Order After Hearing may also be renewed for additional periods
of time upon request by the protected person and upon approval
by the court making it for a permanent duration.
Back to Top
Q: ARE THERE OTHER REMEDIES AVAILABLE TO PREVENT
FURTHER DOMESTIC VIOLENCE?
A: In order to try and prevent further incidents of
domestic violence the court may issue a Restraining Order
or a Protective Order. The Court may include certain restrictions
within the order under the premise of providing protection
to the victim. Orders issued in a Domestic Violence case may
include: Kick out orders (where one party is ordered by the
court to leave the house), stay away orders (where restrained
party may not contact, come in contact with, attack, threaten
ect), 100 yard stay away (person can not come within 100 yards
of protected person), order to enroll in counseling ( anger
management, batterer treatment counseling etc), prohibition
from purchasing or possessing firearms. The Court's ultimate
goal is to protect and reduce the potential for harm on others.
Back to Top
|
