SHOULD YOU MODIFY YOUR CHILD AND SPOUSAL SUPPORT OBLIGATION IF YOUR INCOME DECREASED?
If you have an existing child support or spousal support obligation (court order) and your income decreases or even worst if you are laid off from your job causing a major loss of income, you may want to consider modifying your existing child and spousal support order. You are not automatically relieved from your obligation to pay a court ordered child and spousal support just because you were laid off from your job. Some people have a mistaken belief that just because they lost their job, they are automatically off the hook from paying support. This is not the case. The support order remains in place until it is modified by a new support order. You will need to immediately file a Request for Order (motion) with the Court to modify the existing support order when there is a substantial change in your circumstance such as a loss of income.
The support orders are generally based on the parties’ financial situation and custody arrangements at the time of the settlement or trial. If your income has gone down substantially from the time that the child or spousal support determination, you may be able to file a modification of your support obligation. Losing a job or having less income constitutes a material change of circumstances that would allow the court to modify down your support obligations.
Child support in California is based on a guideline formula. One of the factors that is considered in the guideline formula is your gross income. Usually the court would look at several months or even an average of the last 12 months income. If your average income has decreased, you may be able to modify your child support to a lower amount. Bear in mind that there are other factors that come in the equation such as the amount of actual timeshare you spend with your child and the income of the other parent. If the other parent’s income has gone down, this may adversely affect your child support obligation. Also bear in mind that any unemployment benefits that you may be receiving will be considered as income available for support in the child support guideline calculation.
Spousal support may also be modified unless you stipulated in a divorce judgment that it is non-modifiable. However, spousal support are usually calculated differently than guideline. The court will look at other factors in deciding whether to modify this. Those factors are listed in family code section 4320.
If you are unemployed, the other party may be expected to try to impute income on you. However in light of the recent cases in California, they would have to prove that you had the ability and the opportunity to obtain employment. The Court will also look at the efforts you are making in trying to secure new employment under the current job market environment. If your income has gone down due to job lay off or unemployment, or if your hours were cut, it may be possible to modify both your child support and spousal support obligation. Without modifying the order, the current order will continue to be in effect and the same amount will accrue regardless of whether your income declined or your spouse income increased. It is important to file a post judgment request for order to modify support as soon as your financial situation changes. Failing to immediately modify your child and spousal support obligation and not paying them would result to your support obligation accumulating as child and spousal support arrears. The supported spouse is entitled to the statutory interest on any unpaid support arrears. If the County Child Support Service Department is involved in enforcing the support, CSSD may suspend your passport, divers license, garnish your bank accounts, and intercept any tax refunds due you by the federal or state government.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC This article is not a solicitation. Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail email@example.com or visit our website at Kenreyeslaw.com