• Attorney Brian Nguyen

How to Obtain Child Support

Hopefully, your ex-spouse or the other parent of your children is not as evil as Darth Vader. Worry not. Obtaining child support will not require you to take down an evil empire. In this week's post, I talk about how you can obtain child support from the other parent that will allow you to properly care for arguably the most precious person in any divorce action: your minor child(ren).

Who Must Pay Child Support?

By statute, both parents of a minor child have a duty to support that child. The duty is equal, joint, and several. Not even a court judgment that imposes that obligation solely on one parent abrogates the duty of the other parent to provide child support. This support duty also extends to a child who has been adopted, because once adoption takes place, the adopting parents and child or children are in the legal relationship of parent and child, and have all the rights and are subject to all the duties of that relationship.

But what if I am just the baby mama or baby daddy? Doesn't matter. The marital status of a child’s parents does not affect their support duty. As such, parentage of a child is a key determinant of who bears a child support obligation. So if you suspect the kid ain't yours, you need to speak up. You don't want to find out on the kid's 18th birthday that the kid wasn't even yours. OUCH.

How is Child Support Determined?

The child support amount is determined by two main criteria: 1) the income and expenses of both parties and 2) the amount of time that the child spends with each party. When only one parent has physical custody, his or her support duty is satisfied by caring for and maintaining the child. The other parent’s mutual obligation is satisfied by his or her payment of child support to the custodial parent based on the statewide uniform support guideline. In other words, child support is determined based on a formula.

However, when physical custody is shared, the court will take into account the amount of time each parent has primary physical responsibility for the child, along with a host of other factors, as described in the support guideline. A parent with primary physical responsibility for a child is presumed to contribute a significant portion of available resources for the support of the child.

To put it into a practical context, usually the party who spends less time with the child will be ordered to pay child support to the other parent based on a statewide formula that takes into account the parties' income levels and the percentage of time that the parties spend with the child.

What if the Parties have an Agreement?

By law, a husband and wife may agree in writing for their immediate separation and for the support of their children during their separation or on dissolution of their marriage. However, the validity of a parental child support agreement is conditioned on court approval. Court approval is highly unlikely in certain circumstances including but not limited to the following: if the agreement restricts the court's authority to set a child support amount or if the agreement tries to eliminate the payment of child support. Two parties cannot eliminate the need to pay child support by agreement. Any provision in a separation or dissolution agreement stating such is automatically null and void. Furthermore, an agreement between the parents that specifies a child support payment that is set below the statewide guideline formula is not valid in the absence of parties completing a statutory declaration that helps assure the court that the support agreement is entirely voluntary, adequate, and in the involved child’s best interests, and that there is no support assignment or application for public assistance pending. In short, stipulating to a child support amount via agreement is not recommended. If the parties absolutely want to include child support in an agreement, they need to ensure that the amount is equal or more than the amount set forth using the statewide guideline formula and that it doesn't try to eliminate the court's jurisdiction to modify the amount. And of course, it is never a bad idea to ask a lawyer to look at your child support agreement to see if it is enforceable.

How do I File for Child Support?

There are three main ways you can file for child support: 1) as part of an existing divorce action or 2) if the parties are unmarried, through a separate Parentage action and/or 3) by applying for child support through the local Department of Child Support Services (DCSS). Filing for child support through DCSS is often an attractive option if the parties are unmarried and/or want to obtain child support without hiring an attorney. It does, however, have its limitations. One limitation of filing for child support through DCSS is that in certain circumstances, the court will not award over-due child support or arrears for child support that was unpaid up to the point of filing. I recommend that you weigh your options carefully before you decide to file for child support.

As always, hiring a competent Family Law Attorney (wink wink) to help you with your child support case is never a bad idea.

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