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  1. #1
    Join Date
    Feb 2016
    Posts
    3

    Default Can Parent in Arrears Request Modification of Child Support

    My question involves a child custody case from the State of: California.

    I share 50%/%50 of my son with his father. As part of our "Custody & Support" court agreement from 2010, he was ordered to pay me $217 per month in child support. He is now 2+ years in arrears and even though I have requested that he recommence payments he states that I make more money than him and therefore he won't pay. I am loathe to start a legal process because I honestly don't want him to punish my son for his feelings towards me.

    BUT he recently served me with the income declaration form (FL-150) in what I assume is an attempt to claim that I make more money than him and therefore reduce/eliminate his child support payments. My questions are as follows:

    1. Does he have any standing to take me to court to modify child support or will the courts not give him standing until he has fully paid his child support?
    2. Should I file something with the District Attorney/Courts before he attempts to modify or am I already protected by the fact that he in non-compliance?
    3. Should I get a lawyer or is this a "slam dunk" for me since he hasn't paid?
    4. Do I have to prove he hasn't paid or is the burden of proof on him to show he HAS paid? (I have emails from him where he acknowledges not paying)
    5. If he is allowed to proceed with a request to modify child support and it shows that I actually do make more than him, would I have to actually pay him or would it be offset by what he owes me?

    Thanks so much for your time. God bless you all for all of your help.

    Ruby

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Can Parent in Arrears Request Modification of Child Support

    1. Yes, he can request a modification.
    2. Protected from what?
    3. He allowed to file for a mod; his arrears won't change retroactively but he will not be denied his right to try and get a mod if circumstances have changed.
    4. File contempt for non-payment.
    5. It's typically offset by what he owes.

  3. #3
    Join Date
    Feb 2016
    Posts
    3

    Default Re: Can Parent in Arrears Request Modification of Child Support

    Thanks Dogmatique!

    Re: #2, will I still be able to recover the payments due up until today even if I don't file contempt *before* he attempts the modification? wondering if it's a first-come-first-win scenario or if the child support is a separate issue that he cannot skirt regardless of any filings he makes after today.

    I can't afford a lawyer and if I can simply represent myself I'd like to wait until he tries to get modification. I'm trying not to piss him off by filing and instead have him put the money into a 529 college savings plan for our son instead of paying me directly. thanks again!

  4. #4
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Can Parent in Arrears Request Modification of Child Support

    If the modification is approved, it will go back to the date of filing - no further back than that. This means you can absolutely file a contempt action, no matter what, even if his attempt is denied. That money is owed and as long as it's owed to you (versus the state), it will stay there unless you decide to waive or "forgive" the arrears.

    If you end up paying him you can request that the amount is offset against what he owes until it's paid off at which point you'll start paying.

    Another possibility would be the court simply dropping the order so neither of you has an ongoing obligation (though arrears will, again, still be owed).

    There's actually a pretty terrific explanation here which can be very helpful (albeit "general" rather than state-specific): http://www.ncsl.org/research/human-s...ng-orders.aspx

  5. #5
    Join Date
    Feb 2016
    Posts
    3

    Default Re: Can Parent in Arrears Request Modification of Child Support

    you're awesome, thanks!

  6. #6
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Can Parent in Arrears Request Modification of Child Support

    I know, and you're welcome

  7. #7
    Join Date
    Aug 2015
    Location
    California
    Posts
    77

    Default Re: Can Parent in Arrears Request Modification of Child Support

    Dogmatique is absolutly correct as usual. One thing to look at however is who actually has the kids more? 50/50 is always a nice idea but most times, the split is very different. If he can show that he has the kids more often than you do, he could file for support against you. If you can prove that you have them more often then you're within your right to ask for an increase moving forward. In CA, if he falls behind more than $1000, he can face jail time. hmmmm wonder if he realizes that?!

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