I want to stop paying spousal support, what are my options?

Are you tired of paying spousal support?  If you are obligated to pay spousal support, you may be frustrated.  However, before you stop paying altogether you should read the following article to understand the consequences for failure to pay spousal support. Here are some important facts that experienced San Francisco Bay Area family law attorneys want you to know before you decide to willfully stop spousal support payments to your ex.  

(1) You May Be Able to Ask the Court For A Reduction of Payments

Some spousal support orders are modifiable by the Court. To determine if your spousal support order is modifiable you should look at your marital settlement agreement and read the language to see if your agreement has modifiable or non-modifiable support terms. 

In California, the Court can modify or terminate a spousal support order at any time, unless there is language in your marital settlement agreement that specifically precludes modification.

Examples of non- modifiable language that could preclude a change to the order include any of the following terms:  this agreement for spousal support cannot be modified; this agreement cannot be modified until ----- ; this is a non-modifiable agreement; or this agreement cannot be modified simply on the basis that the income or expenses of the parties has changed to a substantial degree.

A spousal support order is modifiable if there is a provision in your spousal support order that uses the words .. or upon court order. Those words usually mean that the support ordered can be changed if the moving party shows a material change in circumstances since the order was made. This change in circumstances cannot be a demotion or a child’s education decisions.  Instead the change must be such that the parties are in very different positions than they were at the time the order was made.

If you have experienced a change in circumstances – like caring for the health of a relative or a new spouse, you may be able to change your spousal support order. However, if the language of the order is non-modifiable – you need to understand the consequences of failing to pay.  

(2) Failure to Pay Could Result in Owing Even More To Your Ex Spouse.

Past due support orders accrue interest at 10% from the date of each installment becomes due. Family Code Section 155. This means that every payment you miss accrues interest.  Furthermore, support orders may be enforced like any other money judgment. This means that your ex may obtain a Writ of Execution and enforce a money judgment against your bank accounts, property, or even pension.  
This is even more important because courts do not have discretion to relieve the obligor of the interest and unpaid support cannot be discharged in bankruptcy. But let’s say you don’t care about the money, maybe you care about avoiding jail.

(3) Willful Failure to Pay Spousal Support Could Send You to Jail

If you have failed to pay support or paid only part of what you owe and you have the ability to pay, your ex spouse can file a motion for Contempt of Court. If you are found in Contempt because you have the ability to pay but have evaded payment, then you can expect to be fined and/or incarcerated unless you have a defense.

Contact a family law attorney now if you are facing a Contempt charge you can contact me at amanda@gordonfamilylaw.com.
 

Looking for more posts on spousal support:
 

My ex stopped paying child support - what can I do?
My child’s mother does not follow our visitation schedule, how can I get her to comply?
What to do if your ex does not pay support or follow visitation: how to file for Contempt.

Is your ex-spouse a "deadbeat"?

Is your child's father or mother not paying you the child support he/she owes? This article discusses your options.

In California, both parents have a duty to provide support for a child. Whether parents are unmarried, divorced, or separated, child support is usually paid by the parent who does not have primary custody of the child. These payments are intended to cover the child’s food, clothing, and housing, medical care, and education.  

Despite the existence of State guideline formulas, child support payments are one of the most contested aspects of divorce proceedings. Before we look at how to enforce child support payments, it’s important to keep in mind that visitation rights are entirely separate from child support obligations.  

To ask the Court to enforce your child support payments with Contempt, you must make sure that you have a written child support order. This order can be found in your Marital Settlement Agreement or in FL – 342 Child Support Information and Order Attachment. For child support and family support orders it does not matter if the order is based upon the court’s order after a hearing or based upon a stipulation of the parties.   

If there has been a failure of the other parent to pay child support, contempt proceedings are appropriate even if only some part of the child support is paid or if the child support is paid late.

The elements of contempt based on a failure to comply with a child support order differ slightly from other contempt cases. A prima facie case for child support contempt requires (1) a valid court order; (2) the other parent's knowledge of the order; and (3) noncompliance. Once this is established, the person charged with contempt has the burden of showing inability to pay by a preponderance of the evidence. This is different than other contempt cases because the person asking for contempt does not have to show that they know the other party has the ability to pay.

If the Contempt of court proceeding is for a willful violation to pay support, the contempt proceeding must be started no later than three years from the date that the payment was due.  

One important consideration is whether or not a partial payment is being made as opposed to a complete nonpayment.  In situations where there is a complete nonpayment of support you should look into whether your ex is paying other debts such as a mortgage or student loans or if his/her paycheck is being spent on entertainment or a high cost of living. 

It’s important to know that if the other parent doesn’t have the financial ability to make the child support payments due to unemployment or lack of available income, the Court is unlikely to hold the parent in Contempt but they will require that some of the unemployment income goes to support and they may order a parent to participate in job training or to comply with the terms of a seek-work order.   

However, unemployment without proof of attempts to find work is probably is no longer a defense. You can use a parents ability to earn to support a Contempt adjudication. 

Is there anything else I can do? Yes. Contempt is usually a last resort and in California there are other methods of child support enforcement. For example, payments can be withheld from the paycheck of the parent who owes child support, the cost of the insurance may be deducted from the noncustodial parent’s paycheck, a property lien can be put on any personal property and real property, and tax returns can be used to pay past due support.  Additionally, if a parent is behind on child support, the Department of Motor Vehicles may refuse to issue or renew their driver’s license.   

To summarize, in order to pursue contempt for failure to pay child support you need to (1) have a valid order, (2) the other parent has to know about the order; (3) the other parent has to have failed to pay child support.  Just remember that inability to pay is a defense for contempt.  

You can contact me at amanda@gordonfamilylaw.com to learn more. 

Can I be arrested for failure to pay child support?

Over the weekend, the Rapper DMX was arrested for failure to pay $400,000 worth of unpaid child support. See the story here: http://time.com/3939090/dmx-arrest-child-support

Is that possible? Yes. Experienced family law attorneys will explain that the failure to pay your child support may result in criminal penalties and even jail time.  California law provides that the willful failure to provide for a child under the age of 18 is a misdemeanor with a maximum punishment of 1 year in the county jail and a $2000 fine. Pen C §270. 

If you are unable to make child support payments and you fail to appear in a court process to explain why, the Court can issue a warrant for your arrest based on contempt. If you are having trouble with your payments due to a change in your employment circumstances or other financial strain, you can approach the Court and ask for a modification of your child support payments. The Court uses a guideline scale based on a computer program to estimate child support payments and will grant you relief if you meet certain criteria. If your ex spouse claims that you cannot see your children based on your failure to pay child support, you should consult a San Francisco Family Lawyer who can help you adjust your payments and figure out how much you owe if you are behind.   

What is an Ostler/Smith Order?

Experienced family law attorneys in the Bay Area will tell clients that an Ostler-Smith order is an additional support order (child or spousal) that takes into account overtime or bonus income. 

How is child support calculated? 

Under California Family Code Section 4058, salary and wages are includable for purposes of determining annual gross income. Gross income can also include income such as commissions, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Social Security benefits, and spousal support actually received from a person not a party to the order at issue.  And what about inheritance? Although a party’s inheritance is not income under Family Code 4058, the court may consider it as a “corresponding reduction in living expenses”.  

What is a bonus table? 
If you or your ex has an income that fluctuates due to overtime or bonus income, the court will order a set amount for support and an Ostler-Smith order for any overtime earnings or bonus income. At the time the child support is set, the Court will refer to a schedule which provides for a specified percentage of any bonus or overtime to be paid “as and for” child support. The actual percentage will vary depending on the amount of the bonus or overtime.  (See below for an example).

The person who pays support could be ordered to pay a base rate of $2,000 per month for child support.  In addition, he court could also issue an Ostler-Smith order of a fixed percentage of all bonus income received payable as additional child support.  

The payor spouse can be ordered to pay a bonus percentage for both child and spousal support.

Typically,  "Bonus income" is defined as income resulting from employment or self-employment in excess of regular periodic earnings.

Contact a family law attorney today to speak about bonus income and what you or your child may be entitled to receive or what you may be ordered to pay. 

I'm always interested in hearing from readers of this blog and if you have questions, you can reach out to me at amanda@gordonfamilylaw.com or (415) 326-4148. 

Sample Ostler Smith Order

 

What happens if you fail to pay child support?

California Law (Family Code 6500) mandates that each parent has an obligation to support a minor child. This means that parents are required to provide for their children, whether or not they currently live with their children. Experienced family law attorneys will tell you that a court may make child support orders in any legal proceeding that involves dissolution of marriage, legal separation, or child custody.  It is important to remember that an order for child support can be made retroactive to the first date of filing of the request for child support.

How much will I have to pay?

Child support is determined by a state guideline formula that takes into account both parents income, timeshare with the child, custody, and other children in the house. Child support payments can be modified by the court at any time, so consult an attorney if you have recently lost your job or had a change in your family situation. You can also use the state’s guideline calculator to figure out if your obligation has changed.

http://www.childsup.ca.gov/resources/calculatechildsupport.aspx

What happens if I fail to pay?

The consequences of failing to pay a child support obligation can be dramatic, so it is important to be informed about the penalties.  Remember that if the court has made a child support order, you are likely required to pay the state who will then pay the other parent.  Any missing payments are considered arrears and the state keeps track of these payments and the interest (10%) that builds.
The Department of Child Support Services has wide latitude to enforce child support orders and can use any of the following methods: (1) suspension of state licensure including drivers licenses, State Bar, Department of Fish and Game, (2) bank levy, (3) garnishment of unemployment benefits, (4) interception of federal and state tax returns, (5) Pas sport holds (where the individual cannot apply for a passport renewal), (6) garnishment of State retirement benefits PERS, and last (7) a contempt proceeding can result in jail time. 

Can I really go to Jail?
Yes.  California law provides that intentional failure to provide for a child under the age of 18 is a misdemeanor with a maximum punishment of 1 year in the county jail and a $2000 fine. Pen C §270.
Typically, an individual who has failed to make child support payments will be arrested and arraigned if they continuously fail to make payments. Failure to follow a court order including a child support order is considered contempt and a court can order jail time for numerous counts of contempt.
If you have a child support order and have failed to make payments, contact a family law attorney, you can contact me at amanda@gordonfamilylaw.com for help.  Even if you have lost your ability to pay, Attorneys are able to work with you to understand your rights and obligations.