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.

Can I ask my child's mother to pay for private school?

Extra education expenses are a challenging issue, especially when both parents can't afford private school. In this blog post we look at whether on parent can ask the other to pay for private school.

Children's Educational or Other Special Needs

A family court has discretion to increase the amount of child support beyond the support guideline amount to account for costs related to a child's educational or other special needs. Fam C §4062(b)(1). 

In order to obtain an order that a parent pay for private school tuition as an educational need, two conditions must be met.  First, the child must have a special educational need for private education, such as a gifted child or a child who suffers from a disability. See Marriage of Aylesworth (1980) 106 Cal. App. 3d 869, 879 (father ordered to pay private school tuition for epileptic son but not for daughter, absent evidence that attendance "would be of a more personal benefit to her than it would be to any child in general").  Second, the cost must be within the financial means of the payer parent. See Fam C §§4053(d), 4061(b)(2).

Summary of Private Tuition Issue in Aylesworth

In Aylesworth, the California Court of Appeal held that the trial court's order requiring former husband to pay for his son's private school tuition was correctly based upon the father's ability to pay and the mother's testimony at trial.  At trial, the mother established that her wealth had declined drastically since the prior order and she was in a deficit financial position, while the needs of the children had increased due to their growth, aging and the increased costs of living. In addition, her testimony established that the oldest child had educational difficulties due to  suffering of epileptic seizures.  The mother further established that the private school the child attended was able to give him personalized attention.  The trial court found that it was in the child's best interests to stay enrolled in a small private school where he received such personalized attention. The father was ordered to pay the yearly tuition of $2,400.

In reaching its holding, the Aylesworth court also applied Straub, which held that a child is entitled to an award of private school tuition where appropriate to his parents' income. Straub v. Straub (1963) 213 Cal. App. 2d 792, 798.  In his argument, Father claimed thatStraub was inapplicable because it had nothing to do with the needs of a child for private school caused by an alleged medical condition. Father also stressed the trial court's refusal to grant the mother's request that he also pay tuition at the same private school for their other child. Father further argued that the award of tuition for his son was an abuse of discretion since the purported medical need no longer existed because his son takes medicine to manage his epilepsy.

If you are interested learning more about education expenses, you can contact me at Amanda@gordonfamilylaw.com for more information.

Can I deduct my travel expenses from child support?

Yes, parents who travel to visit with their children can deduct their travel expenses from child support under Family Code 4062. Travel expenses for visitation are one of the discretionary items that may be added to statutory formula support as additional support for the children.

In order to ask for a deviation from guideline support, a court may deviate from the statewide child support guideline if it finds that application of the formula would be unjust or inappropriate due to special circumstances in the particular case. Fam C §4057(b)(5).

While Family Code 4062 does not define what is meant by the term "travel expense, the Court in Marriage of Fini (1994) 26 CA4th 1033, determined that because the expenses are typically incurred by the noncustodial payer of support, this expense should actually be considered a "negative add-on," which has the effect of reducing child support. 26 CA4th at 1039 n5. The court in Marriage of Gigliotti (1995) 33 CA4th 518, 529, disagreed with the court in Marriage of Fini, finding that the court does not authorize a "negative add-on," only "additions to the guideline formula amount because of expenses set out in [§]4062."  

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.