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Q: Alimony & Child support reduction ( Answered,   0 Comments )
Question  
Subject: Alimony & Child support reduction
Category: Relationships and Society > Law
Asked by: cpn2kxw-ga
List Price: $50.00
Posted: 08 Aug 2006 20:27 PDT
Expires: 07 Sep 2006 20:27 PDT
Question ID: 754082
Background divorced after 19.9 years, 48 yrs old living in LA with a
high school education.  I have a son 18, July 14th 2006 and daughter
16 birthday 12/15/2006. Both children graduated from HS this year.  I
pay $1200.00 in child support and I was ordered to pay alimony for 9
years in 2004 in the amount of $804.00. My monthly take home pay was
$3200.00 after child support.  I?m left with $2,396 and can barely
make ends meet.

My ex-wife asked that I not return home while in the hospital
recovering from a nervous breakdown in 2004.  I filed for divorce
because at the lowest point in my life she asked me to leave and she
was also unfaithful.

Approximately 8 years ago we sold our house, I cashed out my
retirement account from the city of LA and we moved to Georgia.  We moved
back to California after 2 year. I had 3 years under my belt towards
retirement at the time of our divorce.

She was a stay at home mother and at times a PT/FT college student. We
agreed that after she finished school she was to seek full time
employment.   She attained a bachelor?s degree in our 16th year of
marriage majoring in the peforming arts and never sought full time
employment. Throughout our marriage I supported her acting career 100%
that's why I never forced the employment issue.

How do I stop my 18 year old child support order & reduce my alimony
payments.  Between this month and the time of my son's order released
could I have the overage on my son's account applied to my daughter's
support until she reaches the age of 18 by reducing the monthly
payment.  Also, how would I go about seeking alimony reduction because
I don?t believe my mental state was 100% while going through the
divorce and alimony proceedings?  I also believe that her education
and my mental state were never considered when alimony support was
determined.  My ex-wife is a healthy, bright, educated woman who still
refuses to seek gainful employment since she receives over $2,000 a
month from me and any additional money from my children because they
are both in the entertainment industry.
Answer  
Subject: Re: Alimony & Child support reduction
Answered By: keystroke-ga on 09 Aug 2006 14:23 PDT
 
Hi cpn2kxw,

It seems that you have three questions:

How do you stop paying child support for your 18 year old son?

How do you go about trying to get the extra amount that you're
currently paying for your son applied to your daughter's child
support?

and

How do you go about changing the amount of alimony that you pay to your ex-wife?


I will try to answer these questions one at a time.


---------------------------------------------------

Your son's child support.

First of all, you should not be liable for support for your son after
his 18th birthday, unless you specifically agreed otherwise. For
example, I know a family in which the father agreed to pay the mother
until the children were 21. If you do not have a specific agreeement
that the support should continue past the age of 18, you are not
liable for the support.

http://www.courtinfo.ca.gov/selfhelp/family/support/supqna.htm#changed

"When does court-ordered child support end?
Court-ordered child support usually ends when the child:

    * marries or registers a domestic partnership,
    * dies,
    * is emancipated,
    * turns 18 and is not a full-time high school student, or
    * turns 19,

whichever occurs first.

Parents may agree to support a child longer. The court may also order
that both parents continue to support a disabled adult child that is
not self-supporting."

So it's clear from this that unless you agreed specifically otherwise,
you shouldn't have to pay any more child support. If you are still
being charged for that and want to make sure the billing is changed,
here is what you can do (from the same website):

"If you want to change your order, talk to your family law
facilitator. Click here to find your family facilitator."

Here is the linked page:
http://www.courtinfo.ca.gov/selfhelp/lowcost/flf.htm

Your family facilitator should be able to get the matter resolved for you.

-----------------------------------------------------------

How do you get the extra amount you're paying for your son added to
your daughter's account?

"Most states, California, provided that child support terminates at
the 18th birth date, unless the child is still enrolled in high school
full time, and then terminates on high school graduation, dropping out
of school, or the 19th birth date, whichever occurs first."
http://www.baucomlaw.com/uresa.htm

So from this, it is implied that you owed child support for your son,
until July 14, 2006 and you will have to keep paying for your daughter
until she turns 18.

However, I would advise you not to keep making payments for your son
even if you have been billed/charged or have not been informed that
you no longer owe. check your bills and make sure that you have paid
for the month of May/half of July to ensure that you don't receive
interest fees, but do not pay more than you owe, waiting for them to
tell you not to. It has only been three weeks, and the child support
services may just be a bit behind. From what I can find, it seems that
overpayments for child support are NOT credited to a payer's account
or even refunded back, but simply placed into a general fund that pays
for collecting child support from deadbeats:

"(b) (1) The state may deposit child support payments received by the
State Disbursement Unit, including those amounts that result in
overpayment of child support, into the Child Support Payment Trust
Fund, for the purpose of processing and providing child support
payments. Notwithstanding Section 13340 of the Government Code, the
fund is continuously appropriated for the purposes of disbursing child
support payments from the State Disbursement Unit."
http://law.onecle.com/california/family/17311.html

Here is an example of someone from Los Angeles County who overpaid,
was not given a refund and had to go to court to get his overpayment
back:

http://www.copss.org/media/LATimesSeries2.htm
"Edward Gray bides his time in the hallway of the Commonwealth
courthouse. The D.A.'s office owed him money for overpayments. After
he was repaid, money was still being taken from his paycheck even
though he no longer owed support.

In addition, the district attorney twice suspended Gray's driver's
license and continued charging him even after his debt, including
interest, was paid and his daughter, now 13, was living with him, Gray
said. Although it has returned the overpayment, the district
attorney's office is still taking money from his paycheck.
      ''They give it to you over there, boy,'' Gray said, shaking his
head. ''They give it to you.''"


http://www.cnsnews.com/ViewCommentary.asp?Page=%5CCommentary%5Carchive%5C200204%5CCOM20020412b.html%20
"In an effort to promote more aggressive collection of child support
obligations, the Federal government offers a 6 to 10 percent incentive
for each dollar of child support collected at the state level. Such
incentives create an atmosphere that promotes default paternity
findings and discourages agency employees from correcting billing
errors and from issuing refunds for overpayment of child support."

However, it might be possible to deduct the overpayment from future
payments to your ex-wife as this site from Los
Angeles County implies:

"Your signature below acknowledges that you are aware that any amounts overpaid to
you may not be deducted from future support payments sent to you unless you consent
in writing at the time, which consent may be revoked at any time. However if you do
not consent to repay the overpayment to the county by a deduction from
future support,
the local child support agency is authorized to use the collection of
the last unassigned
arrearage payment to repay the overpayment."
http://childsupport.co.la.ca.us/forms/CSS2115.pdf

I would not count on this, though, and I would contact my family law
facilitator and confirm whether a child support release order has been
granted to you; if it hasn't, why not; and confirm when you can stop
making child support payments for your son. I would NOT rely on the
child support authorities to make it easy for you by allowing you a
credit on future payments.


-----------------------------------------------

How do you change the amount of alimony you're paying to your ex-wife?

Since you did sign and agree to nine years of spousal support, it is
unlikely, but possible, that this can be changed.

A judge made the decree, rather than you and your ex-wife, so
dismissal on the grounds of you not being in a right state of mind is
probably not possible. The judge made the decision based on your
wife's need and your ability to pay, not a mental state.

Alimony can be modified in California if there has been a "change in
circumstances": "a detrimental change in the obligor party's needs or
ability to pay outweighs the other's need for support". If you can
prove that a change in circumstances modifies your ability to pay, you
could get the award reduced or terminated.
http://www.kinseylaw.com/clientserv2/famlawservices/spousal/spousalsupport.html

The most important factor determining the amount you owe is the fact
that you were married for so long, more than 10 years. An important
factor to determine whether you can modify the order is the amount of
time the original court claimed jurisdiction. Here is a webpage with
an example:

http://www.divorcenet.com/states/california/ca_art33

If a court claims jurisdiction for three years, they can only modify
the order during the three years. If a court claims jurisdiction
permananently (as they do in cases of longer marriages and as they
probably did in your case), it can modify the order up to and until
the date that the support is terminated. So it is important for you to
know when the court says that they have jurisdiction-- if they have
only set it for a fixed amount of time, you'd have to contest it
before that time is up.

"Modification or termination of spousal support. Most frequently, a
spousal support award made in a judgment may be modified or
terminated.  One of the factors is whther the marriage was a long term
marriage or not. If the marriage lasted for more than 10 years, by
California law, it is a presumptively long term marriage, and the
court is supposed to retain jurisdiction in a judgment; however, if
the spouse receiving the support manages to become more self
supporting or if the spouse paying the support becomes unable to
continue to pay spousal support or unable to pay as much support, then
the court has the jurisdiction to terminate or modify the spousal
support considering all of the factors in Family Code  4320."
http://www.gitlinpetlak.com/spousalsupport.jsp

Here is what a California attorney has to say about seeking a change
in spousal support conditions:

"I look to see whether there has been a ?gavron warning?-- and
admonition that the court often makes requiring the supported spouse
to become self-supporting within a reasonable period of time. Where
the duration of the marriage is less than ten years a spouse is
expected to be self-supporting within half the length of the marriage
as measured between the date of marriage and date of separation.
However, a marriage with a duration of more than ten years has no such
time rule.
I always look to see what the supported spouse has done to work
towards self sufficiency since they have separated. Whether it has
been two years or ten years after the divorce, the supported spouse
had better be making some efforts towards paying their way.

If they have in fact increased their earnings, we will bring this out
in court, and argue that there is less need for support. If they have
not been making any efforts towards working, we will ask for the
spouse to undergo a vocational examination so as to ascertain their
ability to contribute towards their own support. If there has been no
gavron warning in that past, we immediately ask for one? a warning
that the supported spouse needs to become self sufficient."
http://californiadivorce.info/legal.alimony.possibletoterminate.htm

In addition, here is a copy of the law under which alimony is awarded:

http://caselaw.lp.findlaw.com/cacodes/fam/4320-4325.html

"4320.  In ordering spousal support under this part, the court shall
consider all of the following circumstances:
   (a) The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the
marriage, 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.
(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."

Those are the sections pertaining to your ex-wife's job skills. If you
believe that she is indeed able to have a job and chooses not to, your
original decree could have been made in error without the judge
considering this.

If it is worth it to you, it could be advisable to seek out an
attorney and discuss the specifics of your case. But unless you have
had a change in employment or circumstances since the decree was
granted, it is unlikely that a judge would overturn the original order
considering the length of your marriage (unless you can prove that
your wife is not earning what she could on the open market, without
interfering with the children's best interest). If you can't try to
modify based on change in circumstances, you could have the court
issue a "gavron warning," that she must start to become
self-sufficient, and then in a few years if she has not, you could
challenge her easily on that account.

I could find nothing on a person's mental state influencing their
agreement to alimony, and since the judge made the decision anyway, I
doubt that you would be able to state that you were not of sound mind
at that time and couldn't agree to the payments. Google Answers cannot
provide strict legal advice, however, and an attorney might know of
court precedents to help you.  In any case, I wish you well with your
circumstances!

If you need any additional help or clarificatons, let me know and I'll
be glad to help.

--keystroke-ga






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