Do I still have to pay child support if I am not the child’s bio dad?

In California, generally no (there are situations—such as adoption by estoppel where a non-bio dad may be stuck with a Child Support Order, but that is for a different post). However, ones there has been a Judgment of Paternity, even having a DNA test that clearly “0pps you out” as the child’s father is not a perennial get out jail card that you can use at any time.  California Family Code §7645 provides  very specific time periods for when a motion to set aside a Judgment for Paternity has to be made.  Remember  a very simple rule–if you are served with a Complaint to Establish Parentage and for Child Support from  DCSS— DO NOT BLOW IT OFF!!!…That is the time to get some legal representation so that the situation can be handled and that you don’t wind up with an arrears order for Child Support that is impossible to ever pay down, and the child may not even be yours!!! The recent case of San Mateo County Department of Child Support Services v. Clark (2008) 168 Cal.App.4th 834, 85 Cal.Rptr.3d 763 discussed things you can do in furtherance of a motion pursuant to Family Code §7645( i.e. using a deposition subpoena to compel genetic testing)…but its preferable not to have to even go there by addressing the matter before it ever gets to a Judgment.

Treatment of Social Security Benefits in Family Law Act Matters

Family law practitioners are well aware that they must incorporate knowledge of federal law regarding taxation and retirement benefits into their daily practice. However, those same knowledgeable attorneys often overlook another significant area of federal law which has a recurring and pervasive impact on domestic relations issues. That area is Federal Old Age, Survivors and Disability Insurance benefits (OASDI, commonly known as “Social Security”).

Issues pertaining to Social Security benefits arise for family law practitioners in connection with characterization and division of property, bifurcation and early termination of marital status, calculation of child and spousal support and determination of child support arrears. Continue reading →

Child Support / Laches

One of the axioms in family law is that if you owe child support it is an obligation that will follow you forever.

This is clearly the intent of the California legislature. Prior to 1992, child support orders were like other civil judgments in that there was a set time period in which they could be enforced and then, after the time period renewed. In a series of legislation in 1992 and 1993, the scheme for enforceability of all support orders were dramatically changed. Family Code Section 4502 eliminated the need to renew judgments awarding support (both child and spousal) and effectively made support orders enforceable in perpetuity. Subsequent to the aforementioned new legislation, the courts, in interpreting same, found that latches could still be a defense not only to a collection of arrears of spousal support but also child support (In re Dancy (2000) 82 Cal.App.4th 1142, 1147-1160). Continue reading →

What Constitutes Income for Child Support

In the recent case of Yesem Asfaw v. Zeman Woldberhan, 2/27/07 DJDAR 2721. BI82096 (Second Appellate District Division 8)  the appellate court found that in determining what made up available income to utilize the formula for child support pursuant to Family Code Sections 4058 and 4059,  that in certain circumstances depreciation is not an allowable deduction from gross income.

The case involved a non-custodial father whose source of income was monies received from various investments including apartment buildings. In determining his income available for support calculations  with respect to money derived from his rental properties, the court deducted depreciation. The mother appealed and the appellate court reversed. Continue reading →

When Do You Owe What You Owe?

It is not uncommon for litigants in family law cases to find out that, unbeknownst to them, they owe substantial amounts of money in either spousal or child support arrearages. The usual response is “how did this happen”?

The simple answer to this question as to child support is found in this state’s public policy to maximize the collection of child support (See Family Code §4053 and §4071) coupled with the aggressive tactics of the district attorney’s offices throughout the state. The district attorney is the agency entrusted under Family Code §4002 and Welfare and Institutions Code §11350 and §11475.1 to collect child support. There has been a “split” in policy between district attorney’s offices throughout the state as to whether or not all child support orders could be retroactive to the date of commencement of the proceeding (i.e. the filing of a paternity action or a complaint to establish child support) or from the date the first motion or Order to Show Cause formally requesting a temporary order from the court was filed. Continue reading →

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