When a marriage or domestic partnership ends in California and there are minor children involved, a court will be very interested in making sure that the children will continue to receive the financial support necessary to provide for their basic needs and, in some cases, the lifestyle they were accustomed to living before the divorce.
Who will pay what to whom, how much, and for how long can be decided between the parents, but the court will always have the final say guided by what is deemed to be in the best interests of the children.
Once a final order has been entered, either the person paying support (PPS) or the person receiving support (PRS) can petition the court to modify the amount of the payments when the circumstances existing at the time the order was finalized have changed significantly.
Child Support Obligation in California
Both parents have an ongoing obligation to provide financial support for any minor children. However, that is not to say parents must each provide equal financial amounts. The relative circumstances of each parent after a divorce are taken into consideration when child support payments are ordered.
The objective is to have the children able to continue with the same standard of living after the divorce, and imposing some amount of hardship on the parents will be enforced by the courts if necessary.
Factors Considered in Determining Child Support Payments
To determine the amount of child support payments, California applies a formula to income and expense information provided by the parents. Any relevant factor can be considered, but courts will always consider:
- The earnings and income potential of each parent
- Any other income received by either parent
- Tax filing status of the parents
- The amount of time the children will have with each parent
- Expenses of the parents
- Other financial support the children receive
- Financial needs of the children
California courts generally must order the child support payment amounts as determined by applying the standard formula to the information provided by the parents and can only order different payment amounts under limited circumstances.
How Changes in Circumstances Affect Support Payment Obligations
Either parent can ask a court to modify an order to pay child support when there have been substantial changes affecting their relative financial positions. The primary reasons for seeking modification of a child support order are:
- Changes in a parent’s income
- Changes in the amount of time a parent spends with the children
Some of the circumstances that warrant requesting modification of a child support payment order according to California Child Support Services include:
- Losing a job
- Getting a new job
- Increases or decreases in income at a current job
- Changes in custody or visitation
- Changes in family size
- One parent becoming disabled, going to prison, or being deployed for military service
Parents who can agree on modifying a child support order can file the agreed modification for a judge’s signature and avoid going through the court process.
What Happens if Child Support Payments Are Not Made?
Until a modification order has been signed, the original child support payments remain due and payable each month. In most cases, when a court orders support payments, it also orders that the payer’s wages be garnished by their employer via a ‘wage assignment’ to ensure payment.
But parents can agree to have child support payments come from a source other than an employer. If a parent falls behind making child support payments, the parent receiving child support can ask the court to issue a wage assignment for future payments as well as additional payments toward the unpaid balance. Child support payments that are not paid when due become an unsatisfied judgment subject to an additional 10% interest per year on the unpaid balance.
Failing to pay child support can have other serious legal consequences. When one of California’s local child support agencies (LCSA) is involved, and child support payments are past due, the LCSA has the authority to try and collect payments by doing any of the following:
- Placing liens on real property and bank accounts
- Taking tax refunds
- Taking unemployment, disability, or worker’s compensation benefits
- Suspending driver’s and other professional licenses
- Using any other legal means available to try and collect the unpaid amounts
Under Family Code section 4722, a person with an order for child support can file a motion for contempt for any delinquent amounts more than 30 days late. If the amounts specified in the motion remain unpaid for more than 30 days after the motion is filed, the unpaid amounts are subject to a penalty of 6% of the unpaid balance each month up to a maximum of 72% of the amount owed. A finding of contempt can also result in a fine and community service or jail time.
There can also be criminal penalties imposed for child neglect when child support payments are not made. The California Penal Code imposes a fine and possible jail time on the parent who willfully fails to provide for their child’s ‘necessary clothing, food, shelter, and medical attendance.’ Such willful failure can be punished by:
- A fine of up to $2,000 and/or
- Jail time up to one year
How to Modify a Child Support Order When a Parent’s Income Changes
When a change in child support payments is sought because the income of the person paying support has either gone up or down, verification of income status is required before the court will consider the modification. The parent requesting modification can contact the local child support agency to request the necessary paperwork.
In San Diego, a child support modification review begins with the San Diego Department of Child Support Services. Petitions for modification must request a change of at least $50 or 20% of the original support payment amount. A court hearing will be set to decide the matter unless the parents can agree on the new payment amount.