New Child-Support Law Is Seldom Used
Nothing is permanent, not even your divorce settlement, especially when it comes to the rights of your children and your obligation to support them.
A divorcing couple can make arrangements for their children with or without the direct involvement of a judge.
If the husband and wife are getting along well enough to talk to each other directly or through their lawyers, they may be able to work out a settlement agreement that sets out in writing their respective obligations--such things as who will pay child support, how much, when the non-custodial parent can visit the children. The settlement agreement is then entered by the court as part of its divorce order.
If the divorcing parents cannot decide on a fair settlement between themselves, the judge will decide for them. There will be a formal hearing, much like a trial, where the judge will review such issues as the parents’ income, expenses, ability to pay and the financial needs of the children.
But neither the settlement agreement nor the judge’s decision is etched in stone. Child-support payments may be later increased or decreased. Visitation privileges may be modified. And child support does not last forever.
In fact, most child support ends when the child reaches age 18 or is “emancipated” (living on his own, managing his own financial affairs or married).
Lawyers Not Allowed
In July, 1984, a new law went into effect to make it easier to modify child-support obligations. Although a lawyer was not required when you wanted to modify child-support payments in the past, this law created a new, simplified procedure in which lawyers were not allowed in the courtroom. You’ll find the law in Section 4700.1 of the California Civil Code.
This new procedure allows a divorced parent to increase or decrease child-custody payments by 10% or less once per year. Attorneys may not take part in the proceedings; they may advise about the nature of the proceedings, but they can’t be in court if you want to use this simplified procedure.
If you want to modify child support by more than 10%, you can use this simplified procedure only if you can show what the law calls a “significant decrease” in income. Otherwise, you’ll have to use the normal, more complicated method, which often entails hiring a lawyer.
Basically, in order to start the process all you have to do is fill out a few forms, send copies to your ex-spouse and then carefully and precisely follow written instructions issued by the court. The process is explained in a document entitled “Information Sheet, New and Simplified Way to Change Child Support.”
You can get this information sheet and all the proper forms from the Forms Booth, Room 118, of the Superior Court building in Downtown Los Angeles. Or call your local courthouse to see if the forms are available there. The forms are reprinted in Rule 1285.30 of the California Rules of Court, which you should be able to find at your local law library.
Once you’ve served the “Notice of Request to Change Child Support Order” on your ex, he or she has 30 days to file an objection to your request and demand a hearing. (There is also an information sheet available describing how to oppose the request for a child-support change.)
If your ex does not respond, the court will award a modification of child support without a hearing and without requiring you to submit any economic evidence showing why the payment should be modified.
If your ex does object to your request, there will be a hearing. But no lawyers will be allowed--that is, unless one of the parents is actually a lawyer fighting about the change in payments. At the hearing, each parent will have to give the judge a copy of his or her last year’s state income tax return.
Surprisingly, this new procedure has not been widely used, at least not in Downtown Los Angeles, the central district of the Superior Court, according to Judge Stephen Lacks, the supervising judge in the Family Law Department.
“We assumed that prior to the passage (of the law) . . . there would be a tremendous influx of cases and there just hasn’t been.”
It is not clear why this new, simple procedure is not being well used.
Lawyers, who are excluded from the process, may not be familiar with it or, worse yet, some of them may not recommend a procedure that will reduce legal fees.
Or, perhaps the “simple” forms are not as simple as they were intended to be. Lawyers may think they are simple--they probably wrote them--but the average guy on the street may have trouble filling in the blanks. (If you’ve tried to use these forms, I’d be interested in your reaction.)
Perhaps there has not been enough publicity about this procedure, and not enough divorced parents are aware of it.
If that’s the case, maybe this column will help.
Let me know.
Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.