Collecting Unpaid Child Support in California

Collecting unpaid child support is an on-going problem for many custodial parents. High unemployment and the national economic situation leads to more people than ever unable to meet their financial obligations including child support payments.

There are a growing number of individuals who have exhausted their unemployment benefits and cannot find work. Bankruptcy, while offering relief from a variety of consumer and medical debts, does not offer relief for a former spouse who is behind in support payments.

California and other states have implemented new ways to help encourage parents to stay current on child support obligations. Even if the non-custodial parent lives in another state, federal child support law requires cooperation between states. The non-custodial parent is legally required to make regular child support payments, regardless of where they live.

California Child Support Enforcement Measures

In order to cut down on the amount of unpaid child support California has enacted provisions that allow for interest and surcharges to be added to delinquent child support accounts. If you have had a change in your income that makes it impossible for you to comply with your current child or spousal support orders it is important that you promptly file for a modification of these orders.  The Court only has the ability to modify support orders retroactive to the date that such a request if filed.

California law requires that interest be charged on delinquent child support accounts. In addition, when a parent that is required to pay child support is 30 days or more delinquent, their name can be submitted by the Department of Child Support Services (DCSS) to the DMV for suspension of their driver’s license. DMV sends a letter giving the parent 150 days to work with DCSS to pay their past due support. If payment is not made, the driver license suspension will take place.  These  laws make no distinction between someone who is financially able to make payments and does not and someone who was unable to pay because of job loss or disability (scscourt.org).

Here is a list of further options:

1. A “wage assignment” is typically imposed to collect regular and past-due payments directly from the paying parent’s paycheck. Funds are deducted by their employer and remitted directly to the custodial parent.
2. Fines and/or possible imprisonment may be imposed by the court
3. Court-ordered earnings withholding which can result in up to 50% of the paying parent’s other income being withheld by their employer(s).
4. Past-due child support may be collected from federal and state income tax refunds, state or property tax credits, and lottery winnings.
5. Liens may be filed against his or her real property or other assets.
6. Applications for state issued business, professional and driver’s licenses (for example: cosmetologist, contractor, doctor, teacher, attorney, class A, B, and C drivers licenses) to parents with past due child support payments may be denied for new licenses or renewals. Current licenses may also be suspended or revoked. Compliance with an agreement to pay past-due child support is required for reinstatement.
7. Workers’ compensation lump sum payments owed to non-custodial parents may be collected to pay past due child support. (supportkids.com)

Interest on Missed Child Support Payments

The State of California allows for interest to be charged on missed support payments at a rate of 10% per year. Interest accrues from the date an installment is due if support is payable in installments, or from date of entry of judgment if a lump sum support order was made.

California also charges interest on back child support at a statutory rate of 10% per year. Interest accrues from date installment is due if payable in installments, or from date of entry of judgment (singleparents.about.com).

Age of Emancipation / Age of Majority in California

Child support must be paid until the child becomes 18, unless the child has not graduated from high school, in which case the child support continues until the child has graduated high school or turns 19, whichever occurs first. California law does not allow the court to impose continuing support beyond the age of 19, unless the child is physically or mentally disabled or otherwise incapacitated from earning a living. However, if the parents have agreed that child support is to continue into the college years, such an agreement will be enforced by the Family Court (singleparents.about.com).

California has no statute of limitations on past due child support payments; child support is enforceable until paid in full. There is also no statute of limitations on establishing paternity. Paternity can be established at any time. Parents in California have options available for collecting delinquent child support. California families may utilize services available through the California Department of Child Services (scscourt.org).

If your child is suffering from the effects of unpaid child support payments, we may be able to help. Contact the Law Office of Matthew J. Rudy for a free 1 hour consultation.

Paternity and Child Support

Establishing paternity, or determining a parent child relationship, is legally necessary in order to collect child support. If a child’s parents were not married to each other when the child was born, the law does not recognize the father unless paternity is legally established by a court order. Establishing paternity will give your child the same rights and benefits as children born to married parents. Unmarried parents can establish paternity by signing the voluntary Declaration of Paternity. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents either before or after they leave the hospital (Wikipedia).  The federal government provides a payment to the hospital for each Declaration of Paternity signed.  The signed Declaration of Paternity has the effect of a legally binding Judgment of Paternity.

An acknowledged father is a biological father of a child born to unmarried parents, for whom paternity has been established by either the admission of the father or the agreement of the parents.  An acknowledged father must pay child support.  An unmarried man who impregnates a woman is often referred to as an alleged father until there has been a finding of paternity.  An alleged or unwed father will be required to pay child support if a court determines or he acknowledges that he is the father; in addition, an alleged or unwed father has the right to visitation with his child and may seek custody (Babycenter.com).

If parents are registered domestic partners when a child is born, the law assumes that the domestic partners are parents. However, same sex parents should get legal advice to make sure that the parentage is clear. Parents who are not married when a child is born can sign a Voluntary Declaration of Paternity before they leave the hospital, or after. When people who are not married cannot agree about parentage, the Court can order genetic testing. Usually a child’s parentage must be established before you can get child support or custody and visitation orders. You can ask the Judge for child support or custody and visitation as part of a case that establishes the parentage of a child (Nolo.com).

Can I get child support if I am not sure who the father of my child is?

No. Paternity must be established before child support can be ordered. Paternity gives your child many rights, including child support, access to medical records, government benefits and more. However, you can get CalWORKS without paternity (Nolo.com).

What if the father leaves the state before it is proven that he is the father?

The local court may use information they have to decide paternity without him. If paternity is established without the alleged father’s cooperation, the court may order him to pay child support no matter where he lives, even if he is out of California (Babycenter.com).  Once service has been achieved on the alleged father the Court will likely have jurisdiction over the alleged father, particularly if the child was conceived in the state of California.

The man does not have any money or a job to support our child. Why should I bother proving that he is the father?

If you do not establish paternity, your child will not be able to get child support or health insurance even after the alleged father gets a job. Proving he is the father as soon as possible makes collecting child support easier later on (Nolo.com).  Once a child support order is in place the local Department of Child Support Services, if involved in enforcing the order should be alerted of the child support obligor’s new employment once the obligor begins to show up on the new employer’s payroll tax records.

Can I start my case while I am pregnant, before my baby is born?

You may start the paperwork to establish paternity when you are pregnant. The local child support agency can only open and pursue the case after the child is born. If the man you believe is the father denies that he is the father, a genetic test can be ordered after your baby is born. (Some labs will only perform genetic tests after a child is six months of age or older). Genetic tests can be scheduled through the local child support agency (Nolo.com).

Can paternity be established for my child if the father lives in another state?

Yes. The local child support agency will ask for a genetic test from the court in the other state. Also, a man can sign a Declaration of Paternity voluntarily declaring he is the child’s father even if he lives in another state (Nolo.com).

For more information, please contact The Law Office of Matthew J. Rudy for a free 1 hour consultation.

Palimony

Many people believe that if a couple lives together for a period of years and holds themselves out to the world as a married couple, then the couple will be considered to be “legally married.” While this may be true in certain states, California abolished these common law marriages over a hundred years ago. A common law marriage can never be created in California; however it will recognize common law marriages that were created in states which do recognize them.

Even though California does not allow for common law marriages, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances.  In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.”  To be given the status of a putative spouse, it is not enough to say that you simply believed you had a common law marriage.  Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced).  Not only that, but this good faith belief that you are married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status.  Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership.  A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that is required once the relationship is terminated.  A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits (Wikipedia).  The spouse who knew or should have known that the marriage was not valid will typically not be able to benefit from these provisions.

A second category involves the rights of unwed couples who are not putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married.  Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract.  One person may have promised to provide support for the other that’s similar to spousal support (alimony), and this has come to be known as “palimony.”  These palimony actions started in the early 1970’s after actor Lee Marvin broke up with his girlfriend Michelle Triola, whom he had lived with for several years (Nolo.com).

Marvin Case

In Marvin, the plaintiff, Michelle Triola, alleged that she and Lee Marvin entered into an oral agreement which provided that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” The parties allegedly further agreed that Michelle would “render her services as a companion, homemaker, housekeeper and cook.” Michelle sought a “judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship.” (NYTimes.com)

The trial court granted a judgment on the pleadings in favor of the defendant, Lee Marvin, holding that the alleged agreement was unenforceable. The California Supreme Court reversed, stating that “a contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services.” The Court held:

“In summary, we base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights… So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such contracts.” (NYTimes.com)

Although the plaintiff’s complaint alleged only an express contract, the Supreme Court went on to address the issue of “the property rights of a non-marital partner in the absence of an express contract.” Here, the Supreme Court made new law. Prior California cases had refused to enforce implied contracts between non-marital cohabitants. The Court overruled that line of cases, holding that in the “absence of an express agreement the plaintiff might be able to establish an implied contract or implied partnership, and might be able to invoke such remedies as constructive trust, resulting trust, and quantum meruit.” (NYTimes.com)

The problem for Triola, and many since, is that it can be very hard to prove the terms of an oral agreement.  After winning her appeal, Triola’s case against Marvin was returned to the trial court for rehearing on Triola’s claims.  The trial result was again in Marvin’s favor.

For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned.  Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves.  As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works.  If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred (Nolo.com).

If you need more information, please schedule a free 1-hour consultation at The Law Office of Matthew J. Rudy.