Call in to speak with the host
Attorney Liz is a prominent family law lawyer in California who has been practicing divorce law since 1993. She is a certified family law specialist by the California State Bar Board of Legal Specialization. In addition to representing celebrities, Attorney Liz has also sat as Judge Pro Tem in the family law department of the CA Superior Court. This show discusses some of the problems and questions spouses have about divorce in California and about the divorce process. After two decades of matrimonial law, Attorney Liz also offers common sense advice on relationships, marriage and separations.
If you are contemplating divorce & want honest advice on how to work on or terminate your relationship, CALL IN & ASK Attorney Liz.
Hi there and happy Wednesday! You're on at Ask Attorney Liz. I'm here to talk to you about California Divorce and Child Custody cases. And if you have relationship questions related to it, I can give you comments, but please note I am not a licensed therapist. I am definitely not qualified to be a licensed therapist and my clients can tell you, I am more expensive. Anybody who called in to the show, the number for calling questions is 347-850-1663. Again, that is 347-850-1663. But if you do call in to the show and you have an ongoing case, you can call in anonymously. And note there is no attorney-client confidentiality when you call a radio show, okay? Anyway, I have some follow up questions after the last show that I didn't want to go over with some people. I was asked, what is legal separation? Because in California, when you want to deal with the issues in a marriage, you can terminate it with the dissolution of marriage, you can go for a nullity or an annulment or you can get a legal separation. And what a legal separation is? It doesn't legally end the marriage, but it allows for persons to live apart and make their own decisions about money, property, and you actually do go through child custody issues. Most people choose that option for religious reasons or due to insurance or other benefits. For example, remember we talked about health insurance last time. If you stay married with a legal separation, a lot of times you can stay on the health insurance policy.
But one thing, that if you do file for legal separation and that's granted, the other side can ask for a divorce and it will be most likely be granted. And if it is just a legal separation, you are not free to marry again because technically, you're still married. But you will have orders for division of debts, property, child custody, and support issues. We do have a caller. It's a 949 number, 949 you're on the air. Can you hear me 949? 949, you there? Okay, I think the caller is lost. I will leave your mic open if you are there and you want to ask a question, go ahead. Alright, another question, I was asked about is what is the residency requirement to file for divorce in California? For legal separation, just so you're aware, there is not a residency requirement. But for dissolution of marriage, you have to have lived in California for at least six months and in the county where you file for at least three months before the petition is filed. What some people do, if they just moved here it's sometimes they file for a legal separation and then once they made the residency requirements, they then amend it and ask for a dissolution of marriage because you do use the same petition form for both, okay? 949 are you there, can you hear me? Still not, if you want to call in, you want to call 347-850-1663. Looks like we have a caller, but he is not aware that he is on the air.
Is it...? Hey.
It is you.
I thought I was calling into Liz and I wasn't calling to ask a question.
Oh, okay. We have a very technically challenged caller.
Yeah I'm sorry, I tried to get on the other way, it wasn't working for me. So I called the number so I could listen. So am I allowed to just stay on and listen or did I do this wrong?
No, you are fine. I you want I can mute your mic, and then.
You want me to mute you?
Yeah, mute me. Just in case I make any you know bad noises.
That might actually, be very entertaining. Alright, you are now muted. Okay. And you know a lot of people would ask me things like what if their spouse doesn't agree to the divorce? Can they still get a divorce? Well, in California, both parties do not need to agree. You only need one person who alleges your irreconcilable differences. And if they wanted a divorce and there is no turning back, and they say that there has been an irremediable breakdown of the marriage, they can get a divorce even though the other side doesn't agree to it. And you know a lot of times people say, "My spouse had an affair on me, can I get a divorce space from that?" A lot of you I'm sure know that California is a no-fault state. So that means there is no basis for divorce on desertion, for adultery, that's not how it works in this state. And a lot of marriages actually do survive affairs. If you have been in that situation, one book I would recommend is "Surviving Infidelity". It goes through the reasons your spouse might have an affair. Because when there's affair in the marriage, the other spouse can take that on themselves that there is something wrong with them and they have insecurities. Usually it has nothing to do with that spouse. It is usually a weakness in the cheating spouse.
Some people when they have issues, drinks. Some people use drugs. Some people have affairs. And this book really is helpful in coping and understanding relationship has a chance to survive an affair, I highly recommend reading this book, okay? And again, if you have any questions feel free to call in 347-850-1663. Okay? I'm also asked a lot of times, I'm picking up questions that I've got in follow-up e-mails and comments. I would ask is there an age in California when the children can choose where they want to live? Well the easy answer to that is yes, when they are adults when they are 18 or 19, if they are still in high school. But if you mean during the time there's a child custody issue, no. There is a statute that has gone to effect that says: once a child is what the court determines as sufficient maturity, they can take the child's preference into account. And it also states that once they reach a certain age, the court is actually required to listen to what their preference is. And that doesn't mean that the child can testify, it could mean that the judicial officer might take the child in chamber that the child wants to express their preference, or it could mean that they hire the parties or going be court ordered to hire an attorney for the child. And the attorney will express the child's preference or it could mean that in a custody evaluation setting the child's preference could be heard.
Most courts -- don't really want to have the child testify. So if you have a 16-year-old who really wants to talk to the court, it's more likely that the court would talk to them in chambers, okay? Now you have to understand, does that mean the kid is going to get what they want? If it is a situation where one parent is never home, have no discipline skills, let the kids have parties, doesn't make the kid go to school; that obviously is going to weigh against granting the child's preference to be with that parent. Basically, the kid wants to party the empty house. Each case is different. My feeling is, if you have a teenager, most of the time, they don't want to be with either parent, they want to be with their friends. And if they drive that's most likely to happen. I think if you have a teenager in mind and the teenager doesn't want to party in an empty house. But says: "Hey! You know I want to go hang out with dad's when I feel like it, and I want to hang out with mom's when I feel like it" that is something I think you should really give great weight too. Because it's very, very difficult and you don't want a situation where you going to have a runaway or trying to force a sixteen year old to go somewhere where they don't want to go. I mean within reason obviously, I think if both parents are on the same page and can co-parent, and work that out, they can usually work together for what's best for the child. Now, one thing you have to realize is the child knows that the parents are hostile to each other, that affects them. And sometimes, they will say to each parent what they think that parent wants to hear
And sometimes they don't tell the truth, believe it or not little Johnny may not tell the truth and it can cause a lot of problems. I've seen several cases where the child didn't get what they wanted from one parent and went to other one and made all kinds of crazy allegations against the parent who wouldn't do what they wanted. They knew the hostilities between the parents and they played on it. And instead of the parents trusting each other and calling up the other one and saying "You know, Johnny is saying that you locked him out of the house, what's going on?" They file emergency orders and next thing you know they are off into the world of child custody evaluations and it spins around and around and around. And I have had child custody evaluator's say the kid is lying to both parents. So be very careful. If they know there are hostilities between both parents, it's gonna affect how they deal with the parents. And you only have one shot to raise these kids. If you choose to have a very, very hostile relationship with the other parent, just remember that's where you're putting your kid. Another question that I got in an email was, it was about registered domestic partners. In California, how do you terminate a registered domestic partnership?
It is actually a registered domestic partnership and not what some people might think as a common law relationship because there is no such thing as a common law relationship in California. It has actually been registered. Eventually, the way to end this is pretty much the same way as the marriage. You have to either get a divorce, do nullity or an annulment, or death. You can also do legal separation. But yes, the registered domestic partners go through the same thing. There are actual forms for divorce, for legal separation, for registered domestic partners and under the California statutes under state law, registered domestic partners have the same rights and responsibilities as married couples. At this point until we hear from the Supreme Court of the United States, they cannot call themselves married if they are registered domestic partners. However, under Federal law, you have to be very careful because Federal law will not recognize that. So, things like filing of joint taxes will not be recognized at this point. Also a repeal which, are the Federal laws that deal with things like pensions, are really tricky when you are dealing with registered domestic partnership. If you know somebody who is a registered domestic partnership and it didn't work out, have them see a lawyer because it's very, very tricky and they would have to get a divorce or legal separation, or a nullity of marriage. And I just got a text question about nullity of marriage. Basically what I am being asked is: if you are married for less than a year, can you go for nullity of marriage? That is not the basis in California. A nullity or annulment of marriage in California basically says that the marriage was not legal.
Either they didn't go through the requirements of the marriage or it is illegal because it was under duress, or somebody couldn't consent or there was fraud. And I am asked that a lot, whether or not if they have been married less than a year and I said "Well was everybody of stale mind? Is anybody under eighteen here without permission of the parent? Nope? Okay. Is anybody willing to say that they committed fraud?". Because that is pretty much what would have to happen and a lot of people say "I don't care". Well yeah, you should care because you don't want a public record in which you admit you committed fraud. And a nullity of marriage basically says you were never married. If it is for religious reasons, I know the Catholic Church has their own policies on that that is very different than what's required by the state of California. So while you could get a divorce or legal separation in California, if you wanted the Catholic Church or if you're Jewish and you want that get, you called it get, if you wanted something like that, there are completely different standards. And I've seen situations where the Catholic Church has annulled marriages that are decades' long involving children. So while it might be unlikely in the state court for religious reason if that's what you're looking for, it's very different. And there are online resources for different religions on how to do that.
I know the Archdiocese in Orange County has a lot of information online if anybody is interested in that. But once a marriage is annulled, it is like you were never married. Meaning there's no community property, there's no wish you have spousal support, there's no community debt. So it can be kind of tricky. You have to decide if you really want to go down that road. Any questions, call in 347-850-1663 and I will just keep going with the questions that I am being e-mailed or texted. Anybody in the chat room who have a question, feel free to type it out and I will answer it or you can call in. Another question that I was asked, how long before the divorce is final? Everybody wants when they decides to file they want it done. The first time it can be answered is six months and one day after the petition is served on the respondent, the petition is summoned. That's the first time it can be, it's not automatic and most divorces don't end that quickly. Remember, you have to have the respondents either respond or be a default. Then you have to do declarations of disclosure and you have to draft all those judgment papers. If you can get all that done, you could have it done in a couple of weeks if you wanted to and then send it over to the courthouse, have them stamp it and have your judgment entered if you've done it correctly and they will say "All of these are orders of the court and you will be divorced on this day" and it will be six months and one day from the day the response was served.
If they don't know when the response was served or it it's vague, they may do it from the date the response was actually filed. I've seen that a few times often. Then I'm also asked in here, let me see, what were the grounds for divorce? We went over that in the last radio show; it is either irreconcilable differences or incurable insanity. And like I said in the other show it's hard to prove incurable insanity, I wouldn't recommend that. It's a lot easier to go down the road of the irreconcilable differences. Okay, we have a caller. We got 714, you're on the air.
Hi. One question I had is __20.08__ and if you file for divorce and you can't get your husband or ex-husband to sign the paperwork is it illegal and you file it to the court I mean it's like I don't get how long it takes actually I want to go into process.
What you're saying is your husband has not, has your husband files a response?
Did you file a request for default?
Okay, has it been more than thirty days since your husband was served?
Yes. This happened a while ago, it's just something I'm curious, it's past tense at this point.
What you would do, is if they don't respond then you would ask for default and you will go in, do a request for default. Now if their active in the military that is a completely different situation. But assuming that they are not active in the military, you go in for a request for default. Make sure you have your common expense declaration attached. There are property declarations that you need to offer and submit to the court. And then you're going to, after that's entered, you are going to need to request a hearing. And in Orange County there's actually a form for that, a local form where you request a hearing. Because in most situations they are not just going to do that on paperwork if there is property and support. And then you go in on what is known as a prove-up and you go in to court and the judge will ask you if there have been irreconcilable differences that have led to the irremediable breakdown of the marriage. Basically is there any chance you can stay married to this person? And if the answer is there's no chance, this is an irremediable breakdown of the marriage. Then the judge will most likely enter your divorce that you've met the residency of requirements and if he is not in the military, active in the military. And then judge wants you to go through and hear why you divided the property as you are proposing in the judgment. You should have a proposed judgment ready to go. That's not likely to happen in six months and one day after the response was served. Could it happen quickly? Yes, but remember the courts are really congested right now. It depends how quickly you would do your request for default and get that entered and have all the paperwork ready to go.
Okay. But it shouldn't take four years?
I've seen it take four years because people don't know how to do the paperwork. It's very, very complicated. Could it take four years? Yes, absolutely. If you have an attorney and it's taking four years, it maybe another reason. I would call the attorney or fax the attorney or e-mail the attorney and ask him what's going on?
Does that make sense?
My pleasure. You have any other questions?
No, that's it. Thank you.
Okay, take care.
Bye-bye. I have another question from O.C Gal in the chat room. It says child visitation question. If a parent is no longer exercising their visitation rights, at what point or timeline should one go back to the court to change the custody agreement? It depends. I would fill that one out. If your kids are happy and you're happy and you think the other side would work with the kids, I don't see a reason to do that. Because what will happen is the second you say they are no longer exercising, they will start exercising and you are going to have a big battle in court. If it is the child support issue, child support is supposed to be based on the actual time share. So keep a calendar. That's one of the factors in child support, the actual time share.
That is one of the factors in child support, the actual time share. While you can agree to a number like 20%, 30%, 49% you know 51%, that is not something automatic and if you have a calendar showing all of the days, then the court is supposed to use the actual time shift. Now, this is a situation where the children feel abandoned and they don't really know the other parent any longer. It could be detrimental to them. I have seen cases like that and usually what I would do is I would file a request for an order and in that request for order, I would request that there would be reunification therapy or limited time, like for example, may be limited to a couple of hours until they get to know that parent again. And that will show that you're trying to work with the other parent and you want them to have a good relationship with the kids, but you don't want it, you know, shellshock the children, all of a sudden, they haven't seen, you know. Let's say they haven't seen mom in five years and mom pops up and all of a sudden want alternate weeks, then that might be a good reason to go back. Okay. Any other questions in the chat room go ahead and type them in and if you want to call in 347-850-1663. Okay. And let me see, I will go back to some of these email and text questions. Okay. Oh, there is another domestic partnership question. If we did not register our partnership with the State of California, can I still file for dissolution of the domestic partnership?
If the domestic partnership hasn't actually been registered in California or another State, okay. Because we do in most cases give full faith and credit to other States' orders. If that's the case and it hasn't been registered anywhere, like I said, there are common law marriages and there aren't common law domestic partnerships. You have to follow the rules. And if you don't, they are going to see you as not having fiduciary duties to each other and they are not gong to see anything more than a roommate or a friend. If there is pillow talk, you might have what's known as the Marvin action, if you can prove an agreement, but that's kind of hard to prove. Anyway, I've got a caller here, area code 407, you are on the air.
Hello. How are you?
I am good. How are you doing?
Good. Good. I kind of like need your __28.13__. If you are an out-of-state Electronic Return Originator and you have a filing identification number of the file IRS forms through software including California State Tax forms. If people are involved in divorce court, does that disqualify you from being an electronic submitter for their tax forms?
If they agree the files weekly, I am not sure what you are asking. You can still file electronically if their filing a marriage joint if they both agree to it. Electronic filing it really depends on what you are doing. I know that if you are trying to amend a return they won't let you do electronically.
I was saying that with regards to California, if anybody is involved in divorce proceedings, are they still allowed to have an out-of-state originator file their State tax forms?
I have never had that come up. I don't -- I don't -- as long as you meet all the requirements, you may have to be IRSed with the state franchise board
A state franchise board, I believe it is one that sets the standard here. I didn't know if being involved in California bankruptcy or California divorce court would make an out-of-state tax transmitter ineligible to handle that taxpayer's return.
Because if they have got what's called the -- you know it says that District Judge Crenshaw involved here, whoever the judge is. Does it have to be mandated by the court and the court couldn't legitimize an out-of-state __30:14__.
I haven't heard that, but if both parties don't agree to who is going to prepare a joint return, then...
Do you file it separately?
Then they would, if they don't want to file a joint return or if they don't agree on who is going to prepare it, then just like if they were going through a divorce, that's not going to happen. If somebody made a motion in court or mentions to the judge that they didn't want somebody out of state doing it, the judge may have commented on that but if they agree I don't see why not. If you think you are disqualified just because you are out of State I would contact the State franchise board, there might even be something that's on their website.
A frequently asked question.
I am sorry?
I said a frequently asked question?
It's free for you to ask a question?
No, a frequently asked question.
It might be. It might be on their, but I have never heard that somebody involved was disqualified just because of a divorce being filed.
Okay. So the divorce court would not disqualify an out-of-state electronic transmitter for California State for instance.
I have never heard them do that unless one person objects to them.
I get that.
If you are already qualified to do it, I think that's -- if you are already qualified to do it, I have never heard that and it's not one of the restraining orders. There are automatic restraining orders on the back of the summons, but I think you're best to resource for that is to contact the state franchise board.
Well, that's awesome. Cool, yes. Contact the state franchise board. Okie dokie. Alright. Thank you very much.
Thank you. Do you have any other question? Nope. Okay. If you have any other questions, you can call in at 347-850-1663. Okay, and speaking of tax issues, I am asked all the time, who takes the kids as dependents? What happens on the tax returns? If the children are with you more than 50% of the time and you are spending money housing them and clothing them, regardless of how much you are getting for child support, technically you are the one entitled to the exemption. That is not always the best scenario. Sometimes you actually end up with more child support needs if the other person is given the right off for the kids. So what you do is there is an actual IRS form where you can release the exemption to the other side. What if its 50:50? Nobody has more than 50% at the time, it's exactly equal. In those situations, I typically put in the order, hopefully there is more than one kid and they can agree on it, I typically put in the order, it is anticipated that mom will have 50.01% of Susie time share and dad will 50.01% of Billy time share. In that way they would each get one exemption and you know they put in there what they're anticipating and they know where they are going with it. What if dad doesn't exercise his time share and what if mom doesn't exercise, then you can distribute it. But you would have to recalculate child support at that point.
And everybody knows how much fun that is. And I am getting more questions about child support. Is my new spouse's income calculated in child support? Alright. I have been asked this very frequently. The new spouse's income is not income for purposes of paying child support. However, it is used in the calculation to figure out what the tax bracket is. So they know what the taxes will be and what the net income is. Okay. Now I know this is driving everybody crazy. Child support is based on time share and then the amount of income each party has available after taxes and they plug it into these programs whether as excels or digital master or you want to sit down and do the calculus to figure it out. And in those numbers you plug in for example how you file. Are you filing marriage joint, filing single, are you filing single or you filing as a couple. Okay. And then you put in who has got what exemption. You put in growth income of your taxes for your wages or self-employment income. If your self-employment income is actually through corporation and you get a K1 and it's not a schedule C type income, you might want to speak it under other income rather than self-employment because its actually income from a corporation. Okay. You put an interest income, rental income, other support you might get. You also plug in royalties. You plug in non-taxable income. However, be careful with disability. If you get disability, FFI for example, if it's the type of FFI that is based on need, that may not be included as income. Okay. You need to double check with the lawyer to make sure. Alright. Okay.
Once you put in all of these numbers, you will plug in certain reductions they are looking for. For example property tax, interest you are paying on your mortgage and other things for example people think that if they put down their number for the 401 K that they are paying out, it might help for them. A lot of times it hurts them and the reason it hurts them is because the money you're putting in your 401 K isn't getting taxed. So you have more net spendable income. Alright. So after all these numbers go around and they are calculated out comes the child support number. In addition to the base child support number in California, I am talking only about California. I cannot tell you about child support in an other states, okay. You would also do half of child care that you need for work or work training. Okay. And by work training, I mean your job is sending you to go and learn computer classes. I don't mean you decide to take a knitting class at night and you are not a professional knitter. Okay.
So with half of child care everybody splits. Also one half of uninsured medical bills for the children. There are also hardships you can put in there, because remember when you are going through this, a lot of these families are blended families and you will have may be four kids from a prior relationship. If they live with you, you are going to take them as deductions which may not help you because that could actually give you more net spendable income because you are paying less taxes, but you also take the hardship for having you know, you pay for their housing and their food and all that and you would all set it by the child support. If you have situations like this, be very careful because sometimes, people go on those programs and they think it is a little bit easier than it actually it, there are many different ways to run these numbers and I have corrected courts judicial officers several times with the way they were running it because for example one time I had to bring up to a judge in Orange County that they were including FFI disability that was specifically excluded, because it was a benefit form of welfare. You know, you need to be really, really careful because it could make a substantial difference and if you are self-employed, how your income is run is very important, so I would see an attorney to do that. Okay. Now, if you recall, we talked in the last show, the other thing is if you have commissions, bonuses, a lot of times they are not guaranteed, they are not something that, you will be the same amount every year or every month.
So what happens in cases like that, the court can order what's known as a Smith/Ostler, which is we do a base number, usually based on the normal salary and then in the calculations, you can push a couple of buttons to get a bonus schedule for any income over the base salary. And it will be a percentage on the growth amount over it. So if somebody has a based salary of, let's say they have a base salary of $5000 a month, okay. But they have bonuses that end up being $100 grand in one year, the Smith/Ostler could be 30%. Now on that $100 grand, they could be paying $40,000 in taxes. So think about it, $100 grand in bonus, $40,000 in taxes and we'll say, 30% Smith/Ostler. That only leaves them with $30,000 left of their bonus after they paid child support. Okay. So while Smith/Ostler's may sound really good, just remember they are based on growth amounts not after taxes. So if you're looking at that, I would look at numbers, if you were going to average out your total income for the last few years versus if you did the Smith/Ostler to figure out what would be more in your favor, right? And a Smith/Ostler isn't always the way the courts go, sometimes they average income over the last three years and what I always recommend with something like a Smith/Ostler bonus is that you make sure you get copies of pay stubs, W2s or 1099 on a regular basis.
You could do it monthly. You could do it quarterly. You could do it annually. But I would make it part of the order that the other side has to actually provide their pay stubs and due dates and also provide a date by which the bonus income child support the Smith/Ostler portion needs to be paid. Because that's typically not something the Department of Child Support Services will collect. It's too hard to calculate. So you would have to instead of getting it through a wage assignment, you would have to then bring a motion to determine a arrears if you are not getting paid and go through all that hustle, miss work, go to court and fight over this and everyone who has been through can tell you, it is not fun and it takes a long time. So put in actual due dates for this stuff. Okay. Because in most circumstances, it will not be part of your wage assignment. Alright. I am getting a text on a question on a wage assignment. I am being asked, how do you get s wage assignment? Wage assignments for child support in California are pretty standard. What you do is you pull up the form, have it filled out and submit it with a copy of the order and the judges will sign off on it. And then you send a copy to the employer and most of those employers will accept them by fax. I have never had a problem with that. And it comes directly out of the paycheck before the person gets their paycheck.
So its when they get their paycheck, one deduction would be for example, FICA, Social Security, Medicare, __44:07__, health insurance and then the garnishment and the $500 goes directly to the state franchise board who is the enforcement agency under which the Department of Child Support Services is under and from there it gets sent to the payee spouse. Okay. Now, I was asked in here, do you always have to have a wage assignment? You can agree to state a wage assignment and you might want to do that for example when somebody is self-employed. We are sending them an order and they are already ordered to pay it. And as long as they pay on time it should be fine. Yes, you can agree to stay a wage assignment and if you agree to that, the court in most circumstances would accept that. Now, I am also asked in here, what if you are not getting paid child support, what is the interest? It is actually a pretty good investment. On child support, there are all kinds of penalties, but on top of that, you get 10% interest a year. That's pretty good in today's date and age. So anybody who is not paying support a lot of times the interest on the arrears owed. Arrears are child support that hasn't been paid and it's currently owed. So the interest on the arrears can rally stack up. I mean a lot of people are saying their 401Ks or any other investments they have a 10% annual return on them. Okay.
If you have any questions and you want to go on the air it's 347-850-1663. Anybody in chat room wants to type in a question, go ahead and do that. Okay. Also on child support -- I am being asked here on -- again this is a text. Why isn't the Family Law court hearing my case when the Department of Child Support Services is involved? Okay. Now I am going to be specific right now to Orange County and I know it's very similar in Ventura County and L.A. counties and pretty much statewide. When you open a case with the Department of Child Support Services, that means the Department of Child Support Services has now jurisdiction over your case and it needs to be heard when they are present. And for example in Orange County, on the 5th floor of the Lamoreaux Courthouse, there is a court room dedicated to child support through DCSS. And if there is a family law case going on, the family law judge who is carrying the dissolution, once they hear DCSS is involved, in most circumstances will tell you they no longer have jurisdiction. The hearing has to be at the DCSS court room. Okay. In our way, a lot of times what they do, they just arrange for the attorney from DCSS to go to the court room but they also have the whole courthouse like I think they are on Commonwealth in Los Angeles, Over there is where DCSS cases are heard. They also have a facility, I believe, in El Segundo. Okay. But what it does is, in a lot of circumstances, is it breaks your family law case into two different court rooms, which can double your hearing. Because a lot of people file a motion for changing custody and support, when you do that one court room will hear your child custody and the other court room will hear child support.
And so it could take a little longer. But the DCSS will enforce and will deal with child support issue. They do not represent either parent. They represent the interest of the State and of the minor children in receiving support. Okay. And a lot of times, they will get involved for example, if the custodial parent has been on welfare. If they apply for welfare benefits and that could be -- it could even be food stamps, if they apply it for something like that than a lot of times they put down who the noncustodial parent is and what the child support is and DCSS will automatically open a case to recover the money that is being paid out if child support is not being paid properly. Okay. And in those circumstances, a lot of times people will find themselves all of a sudden in the middle of a big child support dispute. But if you are more than 30 days late, DCSS can have your driver's license help so you will not have a driver's license. If you drive for a living or need to drive for a living, they want you tow work, so you would need to talk to them or make a motion to avoid that. They can also hold your passport. They can also cause problems with professional licenses like contractor licenses, attorney licenses, doctor licenses, so people who are late.
The DCSS has a lo of power to enforce a private attorney. If they are going to take away your driver's license a private attorney can take away your professional license that's something that what happened through DCSS. The other thing is that the Department of Child Support Services can collect on your California tax refund. And this is an issue coming up for a lot of people. If you are owed a refund by the State of California but you have arrears in child support, and there is a case open by the DCSS, your refund may get intercepted and get paid to the custodial parent or the parent that you owe child support to. Okay. If you are in a situation where the circumstances have changed and you believe that you were paying or ordered to pay more child support than you are supposed to, you need to file a request form order modifying child support right away. You are not going to get a modification of the amount you are paying until you filed the paperwork and asked for it. Meanwhile, every month you are owing that same amount and the interest is the accruing. Okay. And it's very, very difficult to snap that amount down. You would have to dispute the amount and in many cases that's hard to do. Okay. Because the custodial parent under the laws of California, the payee parent cannot wave child support on behalf of the child.
So if let's say $10,000 is owed, the parties can't agree it's $2000 if the amount has never been in dispute. Okay. The Department of Child Support Services will probably catch them and won't let them do it, but if there is an issue of whether or not payments were made and how much was actually paid towards the benefit of the children, then you might have a good way to agree on an amount that's lower than the amount DCSS would say. But all those orders and all those stipulations need to be signed by DCSS along with the parents. If a DCSS case is opened they are going to have to enter any of those stipulations and they also need to be served. So if you need to update your income and expense declaration when child support that issue, you need to make sure a copy is getting served on DCSS also. Alright. And they are pretty good at letting you know that. And that's something else I want to bring up for an income and expense declaration, it needs to be within 90 days. Alright. You have to have updated income and expense declarations if support or attorney fees are an issue. So if your caring gets continued four months, you better update your income and expense declaration before the hearing, so that you are not going to get continued again for having an updated income and expense declaration. Even if the circumstances haven't changed, if you have the same salary and the same expenses still updated, okay. Because if you don't the court could continue everything. They want to see the last two months of pay stubs.
They want to see an updated profit loss statement if you were self-employed. Okay. We only have about a little under 6 minutes left of the show. If you have any questions, feel free to call in 347-850-1663. I am getting through a lot of material about a lot of relationship questions tonight. That's pretty interesting. Okay. And a lot of people have asked me now, I am getting quite a few texts on this. How do I get DCSS off the case? Well, the person who will open the case with them which is usually the payee spouse or the payee parents needs to close it. Okay. If they are on welfare, it's not likely to happen, but if they are not on any types of government benefits then DCSS is trying to get reimbursed for, then you can close it. You can open it and then close it as you want. But you don't want to do that too often, okay because the Family Law court and the DCSS court are not going to like the files, that you should get back and forth and back and forth. Okay. A lot of people go o DCSS because they think that they represent them and they will get free attorneys. Just remember, those attorneys do not represent either parent and sometimes people go in there and they don't like what they necessarily going to hear. Now, one thing you should do if you are the custodial parent or the parent who is being paid child support, and the other side has made a motion to modify.
Make sure if they are not up-to-date and they owe you money, that you let DCSS know or DCSS is involved that you file your own motion to determine arrears. So that if they owe you money, at least you could get a monthly amount for the arrears they owe you. Because once they determine arrears, there will be an order for them to pay that amount and if it's huge, they may not be able to pay it all at once but they will be broken down monthly. And sometimes the monthly amount isn't even enough to cover the interest so this could be an ongoing payment for a very long time. If you are the payor, the person who owes it, be careful of that situation. If you are not even paying the interest, this debt is going to go on and on and on and you cannot bankrupt it. Okay. If you file bankruptcy, the child support arrears live on with interest. Alright. Also just so that everyone is awarek, under the new bankruptcy laws, a marital settlement agreement, you cannot bankrupt the terms of the marital settlement agreement. So many times if somebody is contemplating a bankruptcy, you want to speak to a Family Law attorney who understands bankruptcy also to coordinate with your bankruptcy attorney. Because once there is that marital settlement agreement and a judgment it's going to be very difficult to change how much you are going to owe your ex-spouse. That doesn't mean that you wont be able to bankrupt Visa and Master Card and medical bills, but if there is a provision that you are supposed to pay that and in the marital settlement agreement and that you will indemnify your spouse which mean pay them back if they pay it or if they get sued for it, you hold them harmless and you'll take care of it.
You can't bankrupt that. So be very, very careful. If you were contemplating bankruptcy and you know the marriage is doomed, you want to make sure you go see a Family Law attorney and a bankruptcy attorney to coordinate this. Because if you think that you are going bankrupt your marital settlement agreement or child support arrears or anything like that, once the orders are entered, it is very hard. Before the orders are entered it could actually be very helpful if you already have to file bankruptcy because the bankruptcy court orders preempt the State court orders. So if there's a finding of your income and a finding of how much assets there were and if you already have been discharged on a lot of debt, it could really make the divorce simple. It could really help resolve things if those issues are already decided in the bankruptcy, but again coordinate with a Family Law attorney and a bankruptcy attorney to do it right and when you interview Family Law attorneys or bankruptcy attorneys, make sure you talk to them about how the two courts and how the two issues will interact and that they know how to deal with that because some of them don't. Anyway, again thank you so much. This show has been brought to you by divorcecomedy.com., self-help, online video curses to help you remove stress from the divorce process. Thank you and we will be on tomorrow night.
Sorry we couldn't complete your registration. Please try again.
Please enter your email to finish creating your account.
Receive a personalized list of podcasts based on your preferences.