Dear California,
The short answer to your question is that it would be HIGHLY
unusual for a court to have the legal ability or desire to order your
father-in-law to pay child support. There are, however, some very
narrow exceptions to the common law rule that non-parents are not
responsible for the support of minor children.
First, let me say that I'm very sorry to hear of your difficult
situation. I can only imagine that the situation at home is beyond
uncomfortable, and then coupled with the uncertainty of your future
when one considers having to go to work for the first time AND support
the children AND obtain housing. But as I read your question, you
appear to be a strong woman that is approaching this fork in the road
intelligently.
Second, may I please suggest a family counseling option?
Perhaps the marriage has been irreconcilably destroyed and nothing can
or will save it. But your husband will be a part of your life and that
of your two girls even after a divorce. For that reason, I would
suggest that you consider family counseling. In many areas this can
be obtained at NO CHARGE for persons in situations similar to yours. I
would suggest that this be investigated through offices like community
mental health, friend of the court, social services, or a church.
Third, as to legal assistance. Expertlaw'ga's suggestion as to
obtaining free or highly subsidized assistance through a law school or
legal aid society is a very good suggestion. Now some legal aid
societies will not do divorces - but ask your local group first. You
should be able to find them in the phone book under "legal aid" in the
white pages. If you can't find them, call an attorney's office and ask
them where the local office is. If you have a law school nearby at a
local university, I would call up the dean's office and ask whether
they have a clinical program that will offer you assistance. Here is
a list of all the law schools:
http://stu.findlaw.com/schools/fulllist.html You may also want to
consider contacting a woman's shelter and ask whether they know of any
attorney that might consider doing such work for free (pro bono).
Also, many local Bar Associations have programs that coordinate pro
bono legal assistance where legal aid cannot (for example, some legal
aid societies won't do divorce work). Again, contact an attorneys
office and ask for a contact to the local Bar Association. They will
know.
Fourth, many many thanks to pinkfreud-ga for finding this
excellent article that discusses grandparents and support:
http://childsupportguidelines.com/articles/art199910.html The article
first appeared in a national divorce law magazine and appears to be an
excellent summarization of the state of the law on this topic.
You have a basketful of issues that can be addressed by a
competent attorney that specializes in divorce: (1) the divorce
itself; (2) the implications of the divorce or separation on the
Social Security Benefits for both you and the girls; (3) the capacity
and obligation of your husband to pay child support; (4) the legal
obligation of a grandparent to pay support; (5) whether the law of
your estate gives you any "equity" in the improvements that you have
made to your father-in-law's house; and (6) the availability of
counseling to help alleviate the stress that exists in your family.
Best of luck in getting through this extraordinarily difficult
time. Again, you appear to be approaching the questions intelligently
and logically.
I hope that I have been helpful in framing the issues here. If
you wish any amplifying information, please hit the little
"clarification" button, write out your request, and I will get back to
you.
weisstho-ga
Search Strategy:
professional experience in family law |
Request for Answer Clarification by
california-ga
on
27 Jul 2002 11:10 PDT
Thank you so much for your answer to my very complicated situation.
As far as the child support issue goes, I was told my father-in-law
would have liability to pay it (which I myself found hard to believe)
Not because he's the childrens grandfather but because he claims not
only his son, on his income tax return each year, but also me and my 2
girls as dependents. I was further told that in order to claim any
person as a dependent their are a list of critereas that must be met.
And one of them is that you provide, so much of their income per year
(i'm not sure but I think it was at least one half of their income per
year).
For example before he started claiming me and my two children I could
go back to college and get full financial aid, because based on my
income I qualified. Now, about a year ago I had been thinking about
going back full time and was turned down for financial aid because i'm
listed as his dependent, and his income is way above the limits to
qualify for any type of financial aid, grants or guaranteed student
loans.
I was further told that even if he takes me and the children off, as
dependents (since their is a possible divorce), by him claiming his
son, (the childrens father) my husbands income is also based on what
his father is obligated to provide, to qualify to claim him as a
dependent. so therefore my husbands income from ssd which is $579
monthly is not all he has to live on. His father has and will
continue to provide him with free shelter, food, clothing, pay his
bills credit cards, car repairs, and give him the cash he needs to
keep up his drug habbit ( of illegal steroids and crack). The $579 per
month from ssd is just pocket money.
In other words what I was told is anyone claiming another individual
as a dependent has a responsibility to that person weather it be a
sister, brother, friend, etc.
Now, I dont know what the truth to all of this is but I did briefly
skim through an article on qualifications that must be met in order to
claim someone as a dependent. And I did see something there about
providing a certain amount of yearly support to that person. Dosn't
that support than become a part of the persons income??
I could have gotten totally wrong information perhaps you can look
into this and give me any additional info. you get.
Thanks so much again
|
Request for Answer Clarification by
california-ga
on
27 Jul 2002 14:27 PDT
1-Yes right now he is claiming us a dependents. I think if I should
move out with the children after the divorce he will no longer claim
us.
2-He will however still claim his son, my husband, the childrens
father. This is because he will provide more than half his yearly
income.
3-I guss my question is very confusing, but let me try again:
The childrens father is the one liable for child support--I'm very
clear on that. His father is not liable for child support, I
understand that as well. My husbands income without his fathers
financial support is only $579 per month. But he is receiving
additional support from his father, which is why his father is
claiming him as a dependent, When a court order for child support is
issued (for the childrens father to pay) the amount will be based on
my husbands income. Dosn't the support his father is giving him count
as a part of his income, in addition to his $579 monthly disability
check.
So when a court decides an amount he has to pay dont they base it on
the $579 disability he receives plus the additional support he
receives from his father (proved by him being a dependent on his
fathers income tax return).
I hope you understand what i'm trying to say.
Anyway I appreciate all your help very much
thanks
|
Clarification of Answer by
weisstho-ga
on
27 Jul 2002 18:03 PDT
Dear California,
QUESTION: DOES A COURT IN DETERMINING CHILD SUPPORT OBLIGATIONS
CONSIDER ALL FORMS OF INCOME, INCLUDING PAYMENTS RECEIVED BY A FATHER
FROM HIS FAMILY? ANSWER: PROBABLY, YES.
Of course every state will be a bit different in how they look at
this question, and within any one state, there may be differences from
case to case. But let’s look at this question from the perspective of
the rules in California:
The California Department of Child Support Services, Child
Support Handbook defines income as “money from sources including:
self-employment, job wages, savings accounts, unemployment money,
disability and workers' compensation, interest, dividends, rents,
Social Security and any other payments or credits due or becoming due
regardless of source. The court may consider the amount of money he or
she thinks the parent could be making, instead of the parent's actual
income.” See the Section of the California Family Code entitled
“Calculating Child Support” at
http://www.childsup.cahwnet.gov/cshandbook.htm#How%20to%20Calculate%20Child%20Support:%20%20Using%20the%20Child%20Support%20Guidelines
NOTE THE PROVISION “and any other payments or credits due or
becoming due regardless of source.” Now the term “any other payment .
. . due or becoming due” is open to judicial interpretation. Would it
be reasonable that the money received by your husband from his father,
including “free” rent, etc., be included? I think that it is very
reasonable that it would. Is it a slam dunk decision? No, and very few
things in the law, particularly in an equitable proceeding like a
divorce, are slam dunks.
This issue may require some hard arguing and creative pleading
and discovery on the part of your attorney, and perhaps while you are
interviewing potential divorce counsel you should focus on this issue
that is so important to you.
We have discussed the direct grand-parental support issue. It is
interesting that the California Family Code, Section 3930 provides: “A
parent does not have the duty to support a child of the parent's
child. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=03001-04000&file=3930
By the say, the entire California Family Code can be found here:
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam
You may be interested, too, in the considerations that the court
may consider in awarding spousal support (also known as “alimony”).
Here again, let’s use California as a guidepost, although if you are
in a state other than California, I think you will find these factors
very common: California Family Code, Section 4320. In ordering
spousal support under this part, the court shall consider all of the
following circumstances:
(a) Earning capacity of each party, taking into account all of the
following:
(1) The marketable skills of the supported party; the job market
for those skills; the time and expenses required for the supported
party to acquire the appropriate education or training to develop
those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future
earning capacity is impaired by periods of unemployment that were
incurred during the marriage to permit the supported party to devote
time to domestic duties.
(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a license
by the supporting party.
(c) The ability of the supporting party to pay spousal support,
taking into account the supporting party's earning capacity, earned
and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of dependent
children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including, but not
limited to, consideration of emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence
against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is
intended to limit the court's discretion to order support for a
greater or lesser length of time, based on any of the other factors
listed in this section, Section 4336, and the circumstances of the
parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=04001-05000&file=4320-4325
I hope that this gets to the root of your question. Thanks so very
much for visiting Google Answers, and BEST OF LUCK TO YOU AND YOUR
DAUGHTERS!!
Weisstho-ga
|
Clarification of Answer by
weisstho-ga
on
27 Jul 2002 18:05 PDT
BTW, Many Thanks!! to Pinkfreud-ga and ExpertLaw-ga for you valuable input!
weisstho-ga
|
