WHY DO I HAVE TO PAY BY WAGE ASSIGNMENT?

It has now been the law for at least seven years that the Court can issue a Wage Assignment if requested at the hearing or upon exparte notice (that is no notice in effect) whenever a child or spousal support order is made. No arrears have to exist. Some Counties will not process a Dissolution Judgment unless a Wage Assignment Form is submitted.

There are now two wage assignment for support forms. The old "California" Wage Assignment form has been modified to now only apply to spousal support. If your employer has not received the new federal form yet, they must still honor the "old" state form. 

The Feds have come up with a child support wage assignment form that each state is now required to use. A Wage assignment form from Colorado now looks like one from California, and slowly these forms will replace older wage assignment forms. An employer is no longer permitted under UIFSSA to ignore a wage assignment because it was not issued from the state in which the employer "does business". A California wage assignment is now good in all 50 states (and vice versa). 

This change of form has caused a lot of confusion with employers, especially smaller companies. So if your employer receives a Wage Assignment form, and they think it is not the "real thing" since there is no place on it for a judge's signature, think again. That's right: the new form does not require a judge's signature before it becomes effective.  See Earnings & Employer's Registration.

I GOT PULLED OVER FOR SOMETHING ELSE AND WAS TOLD MY DRIVERS LICENSE WAS SUSPENDED.

If you get pulled over for driving without valid California driver's license, you now have two big problems. While the ticket itself is "cite and release", its more than a ticket.

If you get pulled over out of state for driving without a valid California drivers license, there are three problems. Citation and release may not apply to you. 


One, you get to go to criminal court. For driving without a valid license. You could be facing a two day visit to your local jail in California. Especially if this is not the first time you are pulled over. The fine is at least $300 with penalty assessments. 

If you are out of state, and get pulled over, even without getting the feds involved, you 
may not get released. If the "feds" get involved, you will be extradited back to California on a warrant for fleeing the jurisdiction to avoid paying child support, if you owe more than $5000 in back support.

Secondly, you get to go to Family Court to see what it will cost to get your license reinstated. Most attorney retainers for this type of Motion start at $1500. And then you still get to pay that back child support. With ten percent interest. Even if it is only $1.25 that you missed in payments for a "few months".

So now you get to pay two attorneys a retainer. And if you think Family Law Attorneys are expensive, call a criminal defense attorney for a quote.

If you fail to pay Court Order Child support even for 31 days, the District Attorney has the right to contact the DMV and ask for a suspension. The DMV only notifies you by mail at the address listed on your license. THE FIRST TIME YOU are supposed to receive a ONE HUNDRED AND TWENTY day warning, and given a form to fill out and mail back to the DMV WITHIN 30 DAYS. In turn, the DMV is supposed to issue a 90 provisional license in order to give you time to get with the DA and straighten out the arrears. This does not always happen. 

This is why it is important to always pay your child support to the DA once you receive written notice from the DA that they are involved, even if the custodial parent asks/begs/demands you to pay them (the parent) directly. Unless the DA receives payment directly, they have no record that you paid for that month, and the computer will spit your name into the "DEADBEAT" folder, and the DMV will get a notice. And so will you, but not a good notice. So, the only way you are off the hook when the DA is involved (meaning when it is ok to pay the other parent directly) is when you receive written notice from the DA to stop paying them, or written notice (like a copy of the letter) that the custodial parent wrote to the DA saying that "they" want their enforcement file closed. 

All fifty states have some sort of suspension rule now. So, moving out of state won't help, because when you go to get a license in your new state, more likely than not the California DMV has put a hold on your license, and the new state will honor that hold. 

For more information, go to the page entitled You and the DMV

THE DISTRICT ATTORNEY IS DRAGGING ME BACK FOR AN INCREASE IN CHILD SUPPORT? WHY????

Any time there is a change in income of either parent of about 20% then there is a chance that the child support should go up or down. In 1992, Guideliner became the law, and many people were brought back to court to have support reviewed because the change in the law alone was considered a good enough reason to review the amount of child support ordered. If Welfare was being paid out, or someone was on unemployment or worker's compensation at the time the order was made, then it is assumed by the DA that after six months the passage of time may be enough to produce a change in circumstances. 

The other possibility is that the "other parent" has gotten upset with you about some other issue related to your children and contacted the DA for a child support review. Generally speaking, the Orange County DA sends you a "nice letter" asking you to provide your pay stubs, fill out an Income and Expense Declaration, Tax returns or other financial information. But they don't say please. They intimidate that if you do not "voluntarily" provide this information, they will drag you back into court and "the amount can be higher".

First, you have no legal obligation to provide the DA with any financial documents, unless there is an "Order to Show Cause" (OSC), Motion or trial pending. Secondly, nine out of ten times, I get a "better" order from the Commissioner than I get as an offer from the DA's office at a "child support review". WHY? Because generally, the people doing the child support reviews are not licensed attorneys but county employees called "child support caseworker". Sounds like a fancy title? Maybe, but there is no educational requirement to be one. These folks tend to believe everything that the "custodial parent" tells them, so if there is a factual dispute about the "time share", they automatically take the position that your number is wrong (even if you and the kids know it is right). If you are self employed, forget it. "They" know that you are hiding income, even if you are on the verge of a chapter 7 bankruptcy. 

So, bite the bullet and get at least a consultation with a family law attorney if there is any factual dispute between you and your former "beloved" about what should be the child support. If for no other reason than to have that person run a 
computer" print out as to what should be the child support. Notice I used the title attorney" not paralegal. Paralegals are nice people (generally), but did not go to law school, nor are they licensed to give you legal advise. They are helpful in filling out those complicated forms called the Income and Expense Declaration, but generally do not understand the "Hearsay rule" or other evidentiary rules which make the declarations they type up for you inadmissible in a court proceeding.

If you cant afford to hire an attorney, then at least go to the local facilitator's office to get help filling out the forms. (See web page entitled Facilitator for more information.)

And please do not wait until the day before the hearing to call an attorney for advise. Most of us get booked up at least two weeks before most hearings. California Civil Code requires that you get at least 21 days written notice if personally served, and 26 days written notice if served by mail, (and more if you live out of state), so you have time to shop around for an attorney without waiting until the last minute. 

For more information, please see our web page on Handling the District Attorney. Handling the District Attorney.

I HAVE NO MONEY TO PAY FOR AN ATTORNEY. IT IS NOT FAIR THAT MY EX GETS A FREE ATTORNEY. WHAT CAN I DO? 

Many Counties now have a program called the Court Facilitator which can help you fill out an income and expense declaration and run a computer program indicating what your child support should be. This is a free service. Don't always rely on the DA to tell you, as their figures will most likely be higher because they tend to not include a time share factor. 

For more information on the Facilitator's office, go to the web page entitled the Facilitator's Office.

There is Case law in California that has held that the District Attorney does not represent either parent , but rather the minor child. I know that it seems like the "DA" represents the other parent, but they job is to collect child support as defined by both Federal and State Law. Most of the Deputy DA's are human beings, and even they do not like some provisions of the Family Code. Yelling at them because the law(s) stinks is not going to get you what you need (a reduction in support). Not only that, they don't make policy decisions as to "how much" you have to pay to get back your license. Yelling at the legislature is probably more effective, since they are the people who set the interest rates at 10% on past due child support, voted out the amnesty program for child support arrears, and put into effect the stupid laws which preclude any "statute of limitations" on the collection of child support arrears, or the admissibility of blood tests to prove non-paternity once a judgment of paternity is entered even though the "other parent" lied as to "your fatherhood." Get angry at them, and involved in the political system. For more information see "resources".

I COULD NOT FIND THE CUSTODIAL PARENT FOR SOME TIME, AND NOW THE DA SAYS I OWE THOUSANDS OF DOLLARS IN BACK SUPPORT. IS THIS FAIR?

You need to hire an family law attorney in your area to assist you. There is a chance that you can get the interest, if not the arrears, removed, but this is a quite complicated legal and factual quagmire. A lot depends upon the age of your children now, whether or not any of the money alleged to be owed is for welfare reimbursement, and what you did to find your children during the time the custodial parent disappeared. 

If you find yourself in a position now where you ex has disappeared with your children, then you need to do the following:

1. File an OSC immediately asking for custody of the children. Service at the last known address may be enough notice.

2. contact the DA (if you pay them the support) immediately and file a OSC to have the support paid into an escrow account until such time as she can be located. Remember there is no retroactivity beyond the service date, so don't procrastinate in getting that one file.

3. File a report of kidnapping with the police. Follow up with hiring a private detective to look for the other parent. Get in touch with the ex's family and explain what you are doing without threatening them.
   
   Most counties have a branch of the District Attorney's criminal office devoted to finding parents who have taken off with the children. While they may not have the manpower and money to extradite the offending parent, they will help you enforce an order for pick up once you find the kids.

4. Contact your local branch of Missing and Exploitative Children (see Web resources for information) and document the actions.

5. Check with the last school where your children were enrolled, because sometimes the "school records" are sought from the new school, and that may give you a clue. If you have joint legal custody of your children, you have a legal right to these records. Take a copy of your custody order to the school and give them a copy. Check with the School District and see if you cant get someone in Records to "flag" the file for contact to the police if a request for release comes through down the road.

6. Pay the money earmarked for support each month into the escrow account for one year. Make sure the DA is advised of your actions. If after one year, the parent does not surface, then the DA will close their file, and is supposed to refund any money that they are unable to pay to the custodial parent. 

7. Hire an attorney who is familiar with the UCCJEA, a relatively new federal statute regarding the enforcement of out of state custody orders. Make sure that you have at least two certified copies of the order from the state giving you custody. Once you find out what state the custodial parent is located in, check with local counsel to see if that state has adopted UCCJEA, because as of 12/31/2000, not all states had. 

8. Remember the " magical" six month limits. Most states loose personal jurisdiction over a child if that child has been removed from the state for more than six months under UCCJEA and UCCJA. So, if you find out where you child is, don't delay in filing in your home state, or else you may find yourself litigating this is another state far away. 
   

I OWE CHILD SUPPORT ARREARS. WHY CANT THE MOTHER AND I WORK OUT A COMPROMISE? 

There are two sets of rules on NEGOTIATION OF CHILD arrears; one set of rules for calculating welfare arrears and a second set of rules which apply to non-welfare cases. 
In non-welfare cases, the parties are free to agree on any number they want as the amount owed, and on any payment plan. In either case, as long as the DA office is involved, it is a "general" office policy that they do not waive interest or any accumulated child support arrears, even if the other parent is standing there and says "yes, I understand." So, if you and the Mother (or Father) reach an agreement on the amount owed, the DA can require that the other parent close their file with the DA before your agreement becomes an order of the court. During this interim time, PUT IN WRITING THE TERMS OF THE AGREEMENT, AND BEGIN PAYMENT ON IT. Then, if the other parent says (or ties to says) "I never agreed to this" you have got proof of an agreement. ORAL AGREEMENTS ARE NOT WORTH THE PAPER THEY ARE NOT WRITTEN ON. 

If any of the money is AFDC/Welfare arrears, the District Attorney is not permitted by statute to waive interest or principle. The rationale is that this is tax payer money, and not that of the parties. 

WHY 10% INTEREST?

I DON'T GET TO SEE MY CHILD... DO I STILL HAVE TO PAY?

Yes, the two are not related insofar as if the obligee refuses to let you see the child then you do not have to pay. There are other legal enforcement's available (contact us) for a parent's refusal to comply with a child visitation order.

I WANT TO SEE MY CHILD!

Starting in 1997, you can file for a visitation order in a District Attorney child support action without having to file separate action once the judgment of paternity was entered. Seeing your child could effect the amount of support you pay. The legislature in adopting the "time share" factor of Guideliner had the purpose of rewarding "people" who see their children with a break on child support. 

However, commissioner, attorneys and parties themselves get suspicious of custody (and increased visitation) actions filed in response to being served with a hearing to modify support. If you do not have a visitation order, file for one. If you have one, then enforce it. But don't wait until the DA serves you with a review of support to start enforcing your visitation order, nor is it wise to file for a "change of custody" in response to being served with a Wage Assignment for support arrears. In fact, it could really hurt your case. 

I, MYSELF, AM ON SSI (OR WELFARE, DISABILITY, WORKER'S COMPENSATION, UNEMPLOYMENT) AND CANNOT PAY MY OWN BILLS. WHAT DO I DO?

There are specific rules in the Family Code and Welfare and Institution Codes which tell the Court and the DA how to calculate support for your case. If you are on AFDC, the DA cannot enforce child support against you. If you are on SSI, to the extent that the federal government pays additional compensation to the custodial parent for the minor child, then that comes off your support obligation. If you are on Disability, Unemployment or Workers Compensation, then your support obligation is a fraction of what you get. Make sure both the DA (and the Commissioner if you are going to a hearing) know what kind of entitlement you are receiving, and attach a copy of any award letter, checks or other documentation to you Income and Expense Declaration. 

I'VE ALWAYS PAID MY SUPPORT TO THE PARENT DIRECTLY CASH, AND NOW THE DA SAYS I OWE THOUSANDS. WHAT CAN I DO?

Always get a receipt for payment of support. DO NOT PAY CASH unless you get a receipt. Research shows that at least 25% of all AFDC cases involve some sort of fraud, and it is probably closer to 40%. If the parent insists on cash, then a light bulb should go off in your head. The burden of proof is upon you to show payment, and with cash, and the other parent on welfare, she is probably not going to admit receiving it because every dime the parent receives, she must report or else she herself has committed welfare fraud. Paying the rent, grocery bill, clothes, etc., will not cut it either if welfare is involved. 

ALWAYS PAY VIA MONEY ORDER, CHECK, OR IF CASH, WITH SIGNED RECEIPT BY THE CUSTODIAL PARENT. When paying the DA, they too insist on money order or certified funds for the most part. You can pay cash if you want to go into their office, but otherwise, don't. Don't give them your personal check, cause then they will have the location of your account, and if you have arrears, then you may find that account empty without any warning. 

ALWAYS PAY VIA MONEY ORDER, CHECK, OR IF CASH, WITH SIGNED RECEIPT BY THE CUSTODIAL PARENT.

When paying the DA, they too insist on money order or certified funds for the most part.

I DON'T HAVE ANY RECEIPTS, NOW WHAT?

If you have paid in cash, then you must bring a witness to the hearing to verify payment to the custodial parent of the cash, any bank records (subpoena if necessary) verifying direct deposit to the other parent's account, or any letters or other documents where there is an admission of receipt of funds. Otherwise, you will probably lose.

MY EX IS GETTING AFDC FOR OUR CHILD, AND I HAVE A CHILD OF MY OWN THAT I AM THE CUSTODIAL PARENT FOR. THE DA SAYS THAT DOESN'T MATTER. ARE THEY RIGHT?

Previously, there was no such thing as a hardship deduction for the parent who had support another child when the child of the proceeding before the court was receiving Cash Aid (AFDC). Family Code Section 4071.5 made it improper for a court to give a parent a hardship deduction for supporting another child in their house (even their own biological child) if AFDC was being paid out.
However, the Fourth District Court of Appeals in Ivanesco (67 Cal.App.4th 328) on October 16, 1998, held this provision unconstitutional as to children previously born to the payor (obligor) who actually lived with and was supported by the person from whom the county is seeking welfare reimbursement. What Ivanesco did not do was to address the issue of the person supporting born after Cash Aid for first paid for an older child, and indeed FC 4071.5 is still "on the books" so to speak.

What is HIGH-VOLUME, AUTOMATED ADMINISTRATIVE ENFORCEMENT IN INTERSTATE CASES??

The Welfare Reform Act of 1996 (42 USC 666 ) was touted as a measure to trim down the welfare roles of people and families who for generations subsided on government entitlements. Democrats and Republicans alike saw this as a political goldmine, because every voter had heard the horror stories of generations of children and their children growing up poor and on welfare. 
When the California Legislature amended the Family Code in 1994, they too saw the "political correctness" of making welfare reform a hot topic. Who wouldn't? For years, taxpayers were tired of increasing income taxes, state sales taxes, and local property taxes. Me too. 

However, what none of us realized then was that if the "welfare" was being cut off, someone has to pick up the cost of enforcement and child support collection must be made "with teeth". Lets face it, we all have family members or friends who either never paid their child support, or never tried to collect it because the parent (usually missing) was the proverbial "dead beat." 

Unfortunately, what now has been created is a system for enforcement that has gotten out of hand, and has created problems for the receivers, the enforcers, and the people who owe support. Each state has their own procedure for enforcement, and a cursory review of the 56 different enforcement procedures in the 50 states and 6 territories is enough to give any web surfer a headache.


Add to this confusion is a new procedure recently published by the Feds which allows one state to contact another state where it is thought that the defaulting obligor is living to open an enforcement action without even registering the action in the new state. Called the HIGH-VOLUME, AUTOMATED ADMINISTRATIVE ENFORCEMENT IN INTERSTATE CASES, it allows a state such as New York to contact the DA is California and if the DA in California finds a bank account in the name of the obligor, California can then issue an administrative writ without any judicial review, freeze the account, and pay it to New York. 
The real kicker is that since there is no California action pending, the obligor must open a file in the new state or go back to the originating state to seek judicial review.