My son's ex-wife is suing for back child support but the children are grown. Is this legal?
Full Question:
Answer:
In determining child support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty, although the primary caretaker of preschool children may not be required to obtain employment. In response to federal legislation, state laws regarding child support payments have become more severe. State laws can require employers to withhold child support from the paychecks of parents who are delinquent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens against the property of those who owe support. Unpaid support must be deducted from federal and state income tax refunds.
Modification of divorce decrees generally refers to a change in the order that was issued declaring the couple officially divorced. The divorce decree will often contain orders related to child custody and visitation, as well as division of assets, support payments, and other issues. Proceedings to modify a divorce decree are commenced by filing a petition to modify in the original divorce action decree. Local court rules and state rules of civil procedure, which vary, govern petitions to modify. Typically, to modify child custody or visitation, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification. It is possible, depending on state law, for child support to be modified at any time under the mandatory statewide child support guidelines.
The following are California statutes:
§ 4000 Fam.
If a parent has the duty to provide for the support of the parent's child and willfully fails to so provide, the other parent, or the child by a guardian ad litem, may bring an action against the parent to enforce the duty.
§ 4007 Fam.
(a) If a court orders a person to make specified payments for support of a child during the child's minority, or until the child is married or otherwise emancipated, or until the death of, or the occurrence of a specified event as to, a child for whom support is authorized under Section 3901 or 3910, the obligation of the person ordered to pay support terminates on the happening of the contingency. The court may, in the original order for support, order the custodial parent or other person to whom payments are to be made to notify the person ordered to make the payments, or the person's attorney of record, of the happening of the contingency.(b) If the custodial parent or other person having physical custody of the child, to whom payments are to be made, fails to notify the person ordered to make the payments, or the attorney of record of the person ordered to make the payments, of the happening of the contingency and continues to accept support payments, the person shall refund all moneys received that accrued after the happening of the contingency, except that the overpayments shall first be applied to any support payments that are then in default.
§ 4010 Fam.
In a proceeding in which the court orders a payment for the support of a child, the court shall, at the time of providing written notice of the order, provide the parties with a document describing the procedures by which the order may be modified.
§ 4011 Fam.
Payment of child support ordered by the court shall be made by the person owing the support payment before payment of any debts owed to creditors.
§ 4503 Fam.
If a parent has been ordered to make payments for the support of a minor child, an action to recover an arrearage in those payments may be maintained at any time within the period otherwise specified for the enforcement of such a judgment, notwithstanding the fact that the child has attained the age of 18 years.
§ 4505 Fam.
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS OPERATIVE UNTIL JANUARY 1, 2011, SEE BELOW SECTION FOR TEXT OPERATIVE JANUARY 1, 2011.]
(a) A court may require a parent who alleges that the parent's default in a child or family support order is due to the parent's unemployment to submit to the appropriate child support enforcement agency or any other entity designated by the court, including, but not limited to, the court itself, each two weeks, or at a frequency deemed appropriate by the court, a list of at least five different places the parent has applied for employment.
(b)(1) The Superior Court of the County of San Mateo may order a parent, concurrent with an initial order for the parent to pay child support, to submit to the appropriate child support enforcement agency or any other entity designated by the court, each two weeks, or at a frequency deemed appropriate by the court, a list of at least five different places the parent has applied for employment during the previous two-week period or other designated interval. The court may issue that order only upon the filing of a declaration by a child support enforcement officer of the local child support enforcement agency satisfying the following conditions:
(A) The declaration states that the child support enforcement officer has conducted an evaluation of the income and earning ability of the parent.
(B) The declaration details the communication, if any, between the obligor and the child support enforcement officer or the San Mateo County child support enforcement agency.
(C) The declaration states both of the following:
(i) The child support enforcement officer believes that, unless ordered by the court to seek employment under this subdivision, the parent would ignore the child support order and would be likely to default on his or her child support obligation.
(ii) The reasons for that belief.
(2) The Superior Court of the County of San Mateo shall not issue a citation for contempt for the failure of a parent to comply with an order issued pursuant to paragraph (1) unless the parent has become delinquent in his or her child support payments.
(3) The San Mateo County child support enforcement agency shall report to the department and the appropriate committees of the Legislature, on or before January 1, 2010, on the cost and performance of the pilot program described in this subdivision, including both of the following:
(A) The number of parents issued contempt citations and the effect of the citation on their employment status and support payments.
(B) The unemployment rate of, and the amount of support collected from, parents who are ordered to seek work pursuant to this subdivision compared with the unemployment rate of, and amount of support collected from, parents who are not subject to these orders.
(4) All costs related to the pilot program established in this subdivision shall be borne by the County of San Mateo.
(c) This section shall remain in effect only until January 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2011, deletes or extends that date. (Stats. 1992, c. 162, sec. 10, operative Jan. 1, 1994. Amended by Stats. 2007, c. 249, sec. 1.)
§ 4505 Fam.
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS OPERATIVE JANUARY 1, 2011, SEE ABOVE SECTION FOR TEXT OPERATIVE UNTIL JANUARY 1, 2011.]
(a) A court may require a parent who alleges that the parent's default in a child or family support order is due to the parent's unemployment to submit to the appropriate child support enforcement agency or any other entity designated by the court, including, but not limited to, the court itself, each two weeks, or at a frequency deemed appropriate by the court, a list of at least five different places the parent has applied for employment.
(b) This section shall become operative on January 1, 2011.
§ 4722 Fam.
(a) Any person with a court order for child support, the payments on which are more than 30 days in arrears, may file and then serve a notice of delinquency, as described in this chapter.
(b) Except as provided in Section 4726, and subject to Section 4727, any amount of child support specified in a notice of delinquency that remains unpaid for more than 30 days after the notice of delinquency has been filed and served shall incur a penalty of 6 percent of the delinquent payment for each month that it remains unpaid, up to a maximum of 72 percent of the unpaid balance due.
§ 4723 Fam.
(a) The notice of delinquency shall be signed under penalty of perjury by the support obligee.
(b) The notice of delinquency shall state all of the following:
(1) The amount that the child support obligor is in arrears.
(2) The installments of support due, the amounts, if any, that have been paid, and the balance due.
(3) That any unpaid installment of child support will incur a penalty of 6 percent of the unpaid support per month until paid, to a maximum of 72 percent of the original amount of the unpaid support, unless the support arrearage is paid within 30 days of the date of service of the notice of delinquency.
(c) In the absence of a protective order prohibiting the support obligor from knowing the whereabouts of the child or children for whom support is payable, or otherwise excusing the requirements of this subdivision, the notice of delinquency shall also include a current address and telephone number of all of the children for whom support is due and, if different from that of the support obligee, the address at which court papers may be served upon the support obligee.
§ 4725 Fam.
If the child support owed, or any arrearages, interest, or penalty, remains unpaid more than 30 days after serving the notice of delinquency, the support obligee may file a motion to obtain a judgment for the amount owed, which shall be enforceable in any manner provided by
law for the enforcement of judgments
§ 4726 Fam.
No penalties may be imposed pursuant to this chapter if, in the discretion of the court, all of the following conditions are met:
(a) Within a timely fashion after service of the notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed.
(b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following:
(1) The child support payments were not 30 days in arrears as of the date of service of the notice of delinquency and are not in arrears as of the date of the hearing.
(2) The support obligor suffered serious illness, disability, or unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order.
(3) The support obligor is a public employee and for reasons relating to fiscal difficulties of the employing entity the obligor has not received a paycheck for 30 or more days.
(4) It would not be in the interests of justice to impose a penalty
§ 4727 Fam.
Any penalty due under this chapter shall not be greater than 6 percent per month of the original amount of support arrearages or support installment, nor may the penalties on any arrearage amount or support installment exceed 72 percent of the original amount due, regardless of whether or not the installments have been listed on more than one notice of delinquency.
§ 4728 Fam.
Penalties due pursuant to this chapter may be enforced by the issuance of a writ of execution in the same manner as a writ of execution may be issued for unpaid installments of child support, as described in Chapter 7 (commencing with Section 5100), except that payment of penalties under this chapter may not take priority over payment of arrearages or current support.
4730 Fam.
At any hearing to set or modify the amount payable for the support of a child, the court shall not consider any penalties imposed under this chapter in determining the amount of current support to be paid.
§ 5100 Fam.
Notwithstanding Section 290, a child, family, or spousal support order may be enforced by a writ of execution or a notice of levy pursuant to Section 706.030 of the Code of Civil Procedure or Section 17522 of this code without prior court approval.
§ 3651 Fam.
(a) Except as provided in subdivisions (c) and (d) and subject to Article 3 (commencing with Section 3680) and Sections 3552, 3587, and 4004, a support order may be modified or terminated at any time as the court determines to be necessary.
b) Upon the filing of a supplemental complaint pursuant to Section 2330.(1) a child support order in the original proceeding may be modified in conformity with the statewide uniform guideline for child support to provide for the support of all of the children of the same parents who were named in the initial and supplemental pleadings, to consolidate arrearages and wage assignments for children of the parties, and to consolidate orders for support. Except as provided in paragraph (2) and subdivision (b), a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.
(2) If a party to a support order is activated to United States military duty or National Guard service and deployed out of state, the service member may file and serve a notice of activation of military service and request to modify a support order, in lieu of a notice of motion or order to show cause, by informing the court and the other party of the request to modify the support order based on the change in circumstance. The service member shall indicate the date of deployment, and if possible, the court shall schedule the hearing prior to that date. If the court cannot hear the matter prior to the date of deployment out of state, and the service member complies with the conditions set forth in the Servicemembers Civil Relief Act, Section 522 of the Appendix of Title 50 of the United States Code, the court shall grant a stay of proceedings consistent with the timelines for stays set forth in that section. If, after granting the mandatory stay required by Section 522 of the Appendix of Title 50 of the United States Code, the court fails to grant the discretionary stay described under the law, it shall comply with the federal mandate to appoint counsel to represent the interests of the deployed service member. The court may not proceed with the matter if it does not appoint counsel, unless the service member is represented by other counsel. If the court stays the proceeding until after the return of the service member, the service member shall request the court to set the matter for hearing within 90 days of return from deployment or the matter shall be taken off calendar and the existing order may not be made retroactive pursuant to subdivision (c) of Section 3653.
(3) A service member who does not file a notice of activation of military service and request to modify a support order or order to show cause or notice of motion prior to deployment out of state nonetheless shall not be subject to penalties otherwise authorized by Chapter 5 (commencing with Section 4720) of Part 5 on the amount of child support that would not have accrued if the order had been modified pursuant to paragraph (2), absent a finding by the court of good cause. Any such finding shall be stated on the record.
(4) Notwithstanding any other provision of law, no interest shall accrue on that amount of a child support obligation that would not have become due and owing if the activated service member modified his or her support order upon activation to reflect the change in income due to the activation. Upon a finding by the court that good cause did not exist for the service member's failure to seek, or delay in seeking, the modification, interest shall accrue as otherwise allowed by law.
(d) An order for spousal support may not be modified or terminated to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination.
(e) This section applies whether or not the support order is based upon an agreement between the parties.
(f) This section is effective only with respect to a property settlement agreement entered into on or after January 1, 1970, and does not affect an agreement entered into before January 1, 1970, as to which Chapter 1308 of the Statutes of 1967 shall apply.
(g)(1) The Judicial Council, no later than 90 days after the effective date of the act adding this section, shall develop any forms and procedures necessary to implement paragraph (2) of subdivision (c). The Judicial Council shall ensure that all forms adopted pursuant to this section are in plain language.
(2) The form developed by the Judicial Council, in addition to other items the Judicial Council determines to be necessary or appropriate, shall include the following:
(A) The date of deployment and all information relevant to the determination of the amount of child support, including whether the service member's employer will supplement the service member's income during the deployment.
(B) A notice informing the opposing party that, absent a finding of good cause, the order will be made retroactive to the date of service of the form or the date of deployment, whichever is later.
(C) Notice that the requesting party must notify the court and the other party upon return from military duty and seek to bring any unresolved request for modification to hearing within 90 days of return, or else lose the right to modify the order pursuant to this section.
§ 3653 Fam.
(a) An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666 (a)(9)).
(b) If an order modifying or terminating a support order is entered due to the unemployment of either the support obligor or the support obligee, the order shall be made retroactive to the later of the date of the service on the opposing party of the notice of motion or order to show cause to modify or terminate or the date of unemployment, subject to the notice requirements of federal law (42 U.S.C. Sec. 666 (a)(9)), unless the court finds good cause not to make the order retroactive and states its reasons on the record.
(c) If an order modifying or terminating a support order is entered due to a change in income resulting from the activation to United States military service or National Guard duty and deployment out of state for either the support obligor or the support obligee, the order shall be made retroactive to the later of the date of the service on the opposing party of the notice of activation, notice of motion, order to show cause to modify or terminate, or the date of activation, subject to the notice requirements of federal law (42 U.S.C. Sec. 666 (a)(9)), unless the court finds good cause not to make the order retroactive and states its reasons on the record. Good cause shall include, but not be limited to, a finding by the court that the delay in seeking the modification was not reasonable under the circumstances faced by the service member.
(d) If an order decreasing or terminating a support order is entered retroactively pursuant to this section, the support obligor may be entitled to, and the support obligee may be ordered to repay, according to the terms specified in the order, any amounts previously paid by the support obligor pursuant to the prior order that are in excess of the amounts due pursuant to the retroactive order. The court may order that the repayment by the support obligee shall be made over any period of time and in any manner, including, but not limited to, by an offset against future support payments or wage assignment, as the court deems just and reasonable. In determining whether to order a repayment, and in establishing the terms of repayment, the court shall consider all of the following factors:
(1) The amount to be repaid.(2) The duration of the support order prior to modification or termination.(3) The financial impact on the support obligee of any particular method of repayment such as an offset against future support payments or wage assignment.(4) Any other facts or circumstances that the court deems relevant.
§ 3690 Fam.
(a) The court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this article.
(b) In all proceedings under this division, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original order and that the moving party would materially benefit from the granting of the relief.
(c) Nothing in this article shall limit or modify the provisions of Section 17432 or 17433.
(d) This section shall only be operative if Assembly Bill 196, of the 1999-2000 Regular Session, is enacted and becomes operative.
§ 3691 Fam.
The grounds and time limits for an action or motion to set aside a support order, or any part or parts thereof, are governed by this section and shall be one of the following:
(a) Actual fraud. Where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud.(b) Perjury. An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury.
(c) Lack of Notice.(1) When service of a summons has not resulted in notice to a party in time to defend the action for support and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event later than six months after the party obtains or reasonably should have obtained notice(A) of the support order, or(2) The court may not set aside or otherwise relieve a party from a support order pursuant to this subdivision if service of the summons was accomplished in accordance with existing requirements of law regarding service of process.(B) that the party's income and assets are subject to attachment pursuant to the order.
(3) A notice of motion to set aside a support order pursuant to this subdivision shall be accompanied by an affidavit showing, under oath, that the party's lack of notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.