Child support is based on all the different income sources. If the income is through stock dividends or rental income, they will be included along with wages. Similarly, unemployment benefits are a source of income that will be included in determining the total amount of income available for child support.
The Employment Development Department (EDD) can withhold up to 25% of the unemployment insurance benefit if the Department of Child Support Services submits information that there are arrears in a court ordered support obligations. EDD gives spousal and child support orders first priority if there are competing earnings withholding orders.
The formula used to determine the final support amount uses the amount of time spent with each parent, all sources of income and any non-discretionary deductions such as deductions for health insurance. For unemployed individuals, retroactivity of the order is either the date of service on the opposing party of the motion to modify support or the date of unemployment, whichever is later. This is authorized by Family Code 3653(b).
Child support arrears are based on the information the court had when the child support order was initially made. Modifications are not retroactive except as to the time of filing the request to establish or modify support orders. Family Code section 3653. For unemployed individuals, retroactivity of the order is either the date of service on the opposing party of the motion to modify support or the date of unemployment, whichever is later. This is authorized by Family Code 3653(b).
What this means is that when the motion is filed, it usually takes some time before it is set to be heard in court and ultimately resolved. The new order is typically made to apply from the time the request was made or served on the opposing party. Therefore, an increase in income will not change the order for arrears. The new wages will only be used to calculate a new order once a new motion for modification is filed.
This issue came up in the case of Stover v. Bruntz 12 Cal.App.5th 19. Despite the fact that a child support order allowed for future modification of child support to apply retroactively to the date the children were no longer enrolled in childcare, it was ruled an error to set the arrears to the date prior to the motion to modify support was filed.
The Uniform Interstate Family Support Act (UIFSA) was written to ensure that only one state will have exclusive continuing jurisdiction in a child support action. This federal act has been enacted into law in California in Family Code section 5700.101 and subsequent sections. The intent of UIFSA and other statutes is to give the first state that issued child support orders be the exclusive jurisdiction to modify such orders so long as the first state continues to have personal jurisdiction over the parties.
Jurisdiction could shift to California if all the parties and child live somewhere else than the initial state where the support order was issued or if all parties have filed a written stipulation to move jurisdiction to another state. See Family Code section 5700.205. A petition to modify the order would have to be done in the original state the order was issued.
If the original order was made in California and one of the parents moved out of the state, the other state would not be able to modify the California order without the required agreement. Such was the case in Stone v. Davis 148 Ca4th 596 wherein it was held that Alabama had no authority to modify a California support order when the paying parent still lived in California and there was no agreement to shift jurisdiction to Alabama.
When modification is requested, financial declarations must be filed. The court will use the current financial information to determine the appropriate support order. The order could be modified up or down. Instead of filing for modification and hope that the support will change in the desired direction, a consultation with a family law attorney should be made. The attorney will ask the relevant questions for your situation and be able to give you a specific number that is likely to be the final order.
Child support orders cannot usually be modified without a showing of changed circumstances. Family Code section 4057.5 states that the income from a subsequent spouse or nonmarital partner shall not be considered when determining child support. The only exception would be in an extraordinary case where excluding the income of the subsequent spouse or nonmarital partner would result in an extreme and severe hardship to the child subject of the support order. The same statute goes on to provide an example of what an extraordinary case may look like. If, for example, a parent voluntarily quits work or intentionally remains unemployed or underemployed and chooses to rely on the subsequent spouse’s income, the subsequent spouse’s income may be considered.
If any portion of the income of either parent’s subsequent spouse or nonmarital partner is allowed to be considered if extraordinary circumstances is found to exist, then the court must allow a hardship deduction based on the living expenses for one or more stepchildren of the party subject to the order.
For more information on Child Support From Unemployment Benefits, a consultation is your next best step. Get the information and legal answers you are seeking by calling (559) 387-5505 today.
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