They Lied About Their Income. Can You Get Your Child Support Back?

Yes, sometimes you can. If your co-parent hid income to get a higher child support order, California law gives you a way to undo that order and recover what you overpaid. But the window to act is short.

Here is a scenario: One parent loses their job and asks the court to raise child support. A week later, that parent lands a new job that pays even more than the old one, and says nothing. Relying on the financial disclosures showing zero income, the other parent signs an agreement that substantially increases support.

Months later, the truth comes out. The paying parent asks for the extra money back. The response: "Sorry, support can't be changed retroactively."

Why support usually can't be changed backward

That response is half right. As a general rule, a court can only change child support going forward, back to the date someone filed a request to modify it. You can't go back and ask a judge to recalculate support for months that have already passed just because circumstances changed.

This rule exists for good reason. Both parents need to be able to rely on a support order and plan their lives around it. But the rule assumes the order was based on honest information in the first place.

The exception: fraud and perjury

When a support order was obtained through fraud or a false financial disclosure, the question changes. You are no longer asking the court to modify support. You are asking the court to set aside the order entirely because it never should have been made.

California law specifically allows this. A support order can be set aside for actual fraud, or for perjury in a party's income and expense declaration or financial disclosures. The same is true when the order came from an agreement the other parent signed because they relied on those false numbers.

The catch is timing. You generally have six months to file your request. That clock starts when you discovered the fraud, or when you reasonably should have discovered it, not when the lie was told. Wait too long and you may lose the remedy, no matter how clear the dishonesty was.

What a set-aside can get you

When a court sets aside an order obtained by fraud, it puts the parties back where they were before the order was made. In practical terms, the original request to change support is still open, and the court can decide it again using the true numbers. Courts have recognized that this lets the corrected support amount reach back to the date the original request was filed.

That means the paying parent can recover overpayments that would otherwise be lost. The court can also order sanctions against a parent who lied on their financial disclosures, which can include paying the other side's attorney's fees. Judges take false income and expense declarations seriously, because the entire support system depends on them.

If you suspect hidden income

Act quickly. The six-month window is the single most important thing to know here. Write down when and how you learned the truth, because that date may become the center of the case.

Gather proof before you confront anyone. Pay stubs, social media posts about a new job, employer information, and bank records all matter. In contested cases, attorneys can subpoena employment and payroll records to confirm what the other parent was earning and when.

Don't sign a support agreement based on numbers you can't verify. If a parent's income drops to zero right before a support hearing, it is reasonable to ask for documentation of the job search, unemployment benefits, and any new offers before agreeing to anything.

And talk to a family law attorney before you simply ask for the money back. A demand letter alone won't get you a refund. The remedy comes through a properly filed request to set aside the order, and getting the timing and the evidence right is what makes it work.

At Gordon Family Law, we help parents and spouses understand their financial rights before and after divorce. If you think a support order was based on false information, contact us to talk through your options.

Understanding the Income and Expense Declaration in California Family Law Cases

When dealing with child support, spousal support, or attorney fees and costs in California family law cases, it's essential to understand the importance of the Income and Expense Declaration (Judicial Council Form FL-150) or Financial Statement (Simplified) (Judicial Council Form FL-155). These forms provide the court with crucial information to assess a party's earning capacity and make appropriate support orders.

A completed Income and Expense Declaration should include the party's current employment details, age, and educational history. It must be attached to any application for support orders and filed on time, as an untimely declaration may be disregarded by the court (Marriage of Kahan & Diamond (2021) 72 CA5th 595, 601).

The declaration should have the party's three most recent pay stubs attached, and self-employed individuals must include a current federal income tax Schedule C and a profit-and-loss statement. Always check local court rules for any additional required attachments.

It's important to note that in proceedings involving child, family, or spousal support, parties cannot refuse to submit their state and federal income tax returns to the court (Fam C §3552(a)).

Post-judgment, either party may serve a request for a current Income and Expense Declaration (Fam C §3664), allowing them to assess whether a modification of support orders is necessary. For a declaration to be considered current, it must have been completed within three months before a hearing, with no significant changes in circumstances (Cal Rules of Ct 5.260(a)(3)).

By understanding the Income and Expense Declaration and its role in California family law cases, parties can ensure they provide the necessary information for the court to make informed decisions on support orders.

I am disabled and on SSDI. Do I have to pay child support?

Experienced Bay Area family law attorneys will tell their clients who are on Social Security Disability Insurance, that they may have to pay child support.

If you are receiving benefits, your child will be entitled to receive your derivative benefits, and you may be required to pay additional child support on top of those benefits. 

Often, dependents of disabled adults qualifying for certain federal disability payments qualify for direct payments. These payments are paid to the custodial parent, even if the custodial parent is not the parent qualifying the child for the disability-related payment.

Fam C § 4504. provides for notification about benefits as well as how such payments are considered within the calculation of child support.

Here is Fam C § 4504: 

Fam C § 4504. (a) If the noncustodial parent is receiving payments from the federal government pursuant to the Social Security Act or Railroad Retirement Act, or from the Department of Veterans Affairs because of the retirement or disability of the noncustodial parent and the noncustodial parent notifies the custodial person, or notifies the local child support agency in a case being enforced by the local child support agency pursuant to Title IV-D of the Social Security Act, then the custodial parent or other child support obligee shall contact the appropriate federal agency within 30 days of receiving notification that the noncustodial parent is receiving those payments to verify eligibility for each child to receive payments from the federal government because of the disability of the noncustodial parent. If the child is potentially eligible for those payments, the custodial parent or other child support obligee shall apply for and cooperate with the appropriate federal agency for the receipt of those benefits on behalf of each child. The noncustodial parent shall cooperate with the custodial parent or other child support obligee in making that application and shall provide any information necessary to complete the application.

(b) If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act or Railroad Retirement Act, or by the Department of Veterans Affairs because of the retirement or disability of the noncustodial parent and received by the custodial parent or other child support obligee shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid. Any payments shall be credited in the order set forth in Section 695.221 of the Code of Civil Procedure.

(c) If the custodial parent or other child support obligee refuses to apply for those benefits or fails to cooperate with the appropriate federal agency in completing the application but the child or children otherwise are eligible to receive those benefits, the noncustodial parent shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child or children in the amount of payment that the child or children would have received that month had the custodial parent or other child support obligee completed an application for the benefits if the noncustodial parent provides evidence to the local child support agency indicating the amount the child or children would have received. The credit for those payments shall continue until the child or children would no longer be eligible for those benefits or the order for child support for the child or children is no longer in effect, whichever occurs first. [Amended by Stats. 2004, Ch. 305, Sec. 4. Effective January 1, 2005]

If you have questions about child support, please email me at amanda@gordonfamilylaw.com

Can you impute income from assets?

Maybe. The court's ability to impute income from assets derives from section 4058, which defines "annual gross income" as "income from whatever source derived," and states that "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income . . . ." (Id. at subds. (a) & (b).) The provision has been consistently interpreted to include the supporting party's ability to earn income from non-income producing or underperforming assets. 

You can contact me at Amanda@gordonfamilylaw.com for more information.

Is rental income included in a support calculation?

Rental income where the income only covers the property expenses generally would not be included in a support calculation.

This is because the “cash flow” is the amount received in rent less what is being paid out, which includes mortgage principal and interest, taxes, insurance, and repairs among other real costs that equals the net income for support purposes before tax.  Only the net income is considered as part of income.  

What we recommend is to go to the rental property schedule of the tax return and add back the depreciation and subtract principal paid down not he mortgaged since only the interest part of the mortgage payment is an allowable deduction for the IRS.  Only if a party had remaining income AFTER paying the mortgage and such, that would be included in the support calculation.

Contact amanda@gordonfamilylaw.com to speak about your specific child support issues.