Loss of Employment & Child Support

In San Diego, California, many residents have lost their jobs. If there is a child support order in effect, it is imperative to immediately file a motion to modify the existing orders since support modifications are not allowed prior to the filing of the order to show cause to modify retroactively. Since, given the court schedule of the court houses in San Diego, Vista, Chula Vista and El Cajon, it may take more than 30 days to get a hearing, it is essential to file the motion to give the Judge the authority to make orders retroactive to the filing date since the order in place must be followed until a Judge modifies this order. Oral agreements are not binding so the filing immediately is essential to protect the rights of the payor and try and obtain their goals.

Many times, the employers will give notice of impending layoffs or termination with either termination packages or other benefits. Many times, as well, they will not. Termination benefits can be considered for support as well as unemployment benefits and any other source of income. Sources of income include, but are not limited to, commissions, salary, annuities, bonuses, disability insurance benefits, dividends, interest, pensions, rents, royalties, trust income, unemployment insurance benefits, wages, worker's compensation benefits, social security benefits, California lottery winnings and presumably any other State's lottery winnings and gambling profits. The Court can also take into account the business structure and any employment or self employment benefits which have a corresponding reduction in living expenses. There are some which are not included which are inheritances and gifts and some personal injury awards among others. In these cases, however, if acquired during the marriage and transmuted and/or commingled this may become an issue for division of the community property interest rather than income for support purposes. This needs to be analyzed on a case by case basis.

The legal procedure for filing a motion [order to show cause for modification of support] is complex. Several judicial council forms must be completed along with an income and expense declaration with the required documentation attached. If the declarant is employed, then the form requires copies of the last three pay stubs. If the declarant is self employed, then there is a requirement of a profit and loss and/or tax returns. For some declarant's, there may need to be a production of both if they are a corporation and are, basically, using this as an "alter ego" for doing business. Once the judicial council forms are properly completed, then they need to be filed with a fee of $40 is payable to the Clerk of the Court. If the filing party is indigent, then they can apply for a waiver of the fees. In addition, a proof of personal service will need to be filed if this is a post judgment motion in San Diego County as this is the local procedure for service.

These can become very complicated hearings since [often] the payee believes that the payor is intentionally diminishing or reducing their income to pay less for support. Many times, there are allegations of cash payments which are not recorded and work which is not reported. Payees can ask for a vocational evaluation if they would like an earning ability to be used instead of actual earnings if they believe a payor is working below their earning ability or produce evidence that the payor can make money through many factor such as employment agencies, newspaper ads and others. Child support, in the family law courts in San Diego including Vista, Chula Vista and El Cajon, is calculated using the Disso Master program which is the State of California guideline and calculates child support.

Any payor or payee should analyze the guideline support before filing any motions since there have been cases of payor's filing {believing their payment will decrease} and their support payment is increased and payee's filing {believing their payment will increase} and their support payment is decreased. Our firm has the Disso Master program and can calculate guideline child support for you. The Disso Master program also calculates interim [temporary] spousal support pre judgment however for post judgment modifications for spousal support, different factors are used and a careful analysis of each one under Family Law Code Section 4320 has to be considered.