What do you do when your ex tries to get out of paying child support or alimony by being unemployed or underemployed by choice?
Yes, some people really are that spiteful. However, any modification of child support or spousal support (alimony) must be approved by a judge first. The amount doesn’t automatically change when they quit their job, it changes when the judge says it does. So getting out of those responsibilities isn’t so easy.
Parents’ duty to support their children
If you have children, you have a legal duty to provide support for them. This duty normally lasts until the child turns 18, or if they are still enrolled in high school, age 19.
When will the court approve a change in child or spousal support?
The court is required to consider a lot of factors in order to set child or spousal support in each case. If the court originally determined that support should be set at a certain level, then there needs to be good reason for changing it.
If there is a legitimate need—a major change in circumstances—then the court may allow a reduction in support. The court will look at ability, opportunity, and willingness to work.
There is a difference between a situation where someone voluntarily cuts back their income out of spite, and when a real need forces someone to quit, work part time, or take a low-paying job that they are overqualified for. Poor health, a tough economy, or other legitimate reasons may force someone to take a step back. In addition, someone might choose to take a lower-paying job with the expectation that it will lead to better career prospects in the long run.
A court wouldn’t necessarily hold it against someone if they decided to step back from a stressful, high-paying job to work in a field that offered greater work-life balance. However, the court should look at each unique situation carefully. For example, if the person is self-employed, the court can look at what the standard rates and hours are in that industry. But as one California case illustrated, you can’t quit a cushy job and expect to live extravagantly off of your savings, and then claim that your income is insufficient to meet your child support obligations.
What’s the solution?
Any changes to child or spousal support must be formally approved in court. If one parent is acting in bad faith by not working or being fully employed, the court can impute income. Basically, it can calculate support based on the parent’s income capacity—what he or she could make, rather than the actual amount.
What about retirement and bankruptcy?
If your former spouse retires after age 65, California law says that they can’t be forced to keep working in order to pay spousal support. But it doesn’t mean that their child support obligations end. Even if the court agrees to modify the payments, the parent’s Social Security income will be considered.
And bankruptcy? Yes, it can complicate matters, but guess what? Child support, spousal support, and arrears for missed payments don’t just go away. In fact, if the debtor has any assets that can be liquidated and sold, support obligations are paid first before any other creditors!
Do you have more questions?
If you suspect that your ex is trying to cheat you out of your child support or spousal support, come talk to an experienced Southern California family law attorney at Kendall Gkikas & Mitchell, LLP. Call 909-482-1422 or email info@parents4children.com today to make an appointment and find out how you can fight back.
