Reasons to Modify Child Support, and How to Do It

Reasons to Modify Child SupportLife is predictable. Even well-thought child support plans may prove unsuccessful. If your incoming child support payments no longer covers the basic needs of you child, then you will to go back to court.

After your child support order is set in place, both you or your spouse can request that the court raises or lowers the payment amount. Learn how and why you may need to modify child support below. For help with child custody modification, contact Law Offices of Rick D. Banks.

You Can Modify Child Support Due to Substantial Changes in Circumstances

In most cases, in order to successfully modify child support payments, you must prove to the court that a substantial change in your circumstances has occurred. This substantial change may include the involuntary loss of a job, a decrease in salary, or a change in your child’s basic needs.

Here are some common reasons to modify child support:

  • Non-custodial parent gains a 10% or more increase to their income. The court generally finds that a child should experience equal circumstances when living in either parent’s home.
  • Custodial parent loses a 10% or more decrease to their income. Sometimes, the court will grant a substantial increase to child support payments if the custodial parent involuntarily loses their job in a difficult economy.
  • Child acquires a substantial increase to their basic needs. This can include educational expenses, medical expenses, or increases to cost-of-living.

Remember, the substantial changes listed above are not based on the intentional actions of either parent. In instances where one parent quits their job or voluntarily accepts a pay cut, the court will not recognize that as valid reasons to modify child support.

How to Make Your Child Support Modification Official

For any modifications you or your spouse makes to child support, you need the court’s approval. The parent requesting the modification must go to the court and specify the new amount. If you do not get the court’s approval, then you will have to uphold the original child support order.

Even if you enter a verbal or written agreement with your spouse for a modification to child support, you should take that agreement to court and get it official. Otherwise, if your relationship with you spouse deteriorates, the parent that accept the new amount can renege on the agreement and seek legal action against you. Judges will only recognize child support orders approved by the court. Therefore, if you do not get the court’s approval, you can be held accountable later on.

Courts will not enforce any verbal child support agreements. When the paying parent fails to make their proper payments, the court will invoke the original support order. The original order will not include any verbal agreements you and your spouse made.

In most cases, obtaining court approval for a modification to child support can be as easy as filing the proper forms and submitting a small fee. The court will generally approve any modification, without a hearing, if the modification does not conflict with the child’s best interests.

If you or your spouse cannot agree on a modification to child support, then you will need to argue your cases in court. This means you’ll need to deal with attorney’s fees and other court costs.

If You Have Reasons to Modify Child Support, Speak to an Attorney

Unfortunately, you will probably find yourself in court if you and your spouse cannot agree on a requested change to child support. For the most part, courts will not make changes to child support unless the requesting parent presents reasonable arguments. Because court procedures are complex, consult with a family law attorney to better represent your position in court. Contact the Law Offices of Rick D. Banks today.

What Should I Do If My Child Refuses Visitation?

Child Refuses VisitationOnce divorced, or legally separated, you and your ex must have a custody order in place. You can either work out custody and visitation arrangements together, or have the court make the decisions for you. This custody order will state which parent holds primary physical and legal custody, or whether both parents share custody. This order will also outline visitation rights of the other spouse, including weekly schedules, locations, summer vacations, and holiday plans.

After the court approves your visitation schedule, both parents must follow that order. If you need to modify visitation or custody, then you will need to get the approval of the court. Unfortunately, if your child refuses visitation with your spouse, then you could be held accountable as well.

If you have questions about child custody, speak to an attorney at the Law Offices of Rick D. Banks today.

What Is a Parent’s Role in Visitation?

According to the visitation schedule, both parents must make their child available for the dates and times laid forth. This includes dropping your child off at a specific location on time. Should your child fall ill, the parent with custody will need to notify the other parent and work out a later date for a make-up visit.

Beyond making a child available for visits, many custody orders don’t clearly outline your entire role towards facilitating visitation. For the most part, the court believes most parents will act accordingly and reasonably. Most judges will also acknowledge the different challenges associated with children of different age groups. For instance, your judge may be more forgiving if your teenager is refusing to visit, rather than if your toddler is refusing to visit. The younger your child is, the more active responsibility you hold in ensuring the visitation schedule is followed.

Am I Liable for Contempt If My Child Refuses Visitation?

Any parent that refuses to follow the visitation schedule can be held on contempt charges. If your spouse prevents you from seeing your child, you can file an Order to Show Cause. This order will state that the other parent is refusing to follow the visitation schedule. Unfortunately, this order can be issued to parents with a child refusing visitation. In this situation, you will need to prove to the court that you’re following the visitation schedule and that your child is the one refusing to cooperate.

As stated before, most judges are more understanding towards cases that involve teenagers. However, keep in mind that your case will solely depend on whether the court believes your child is refusing visitation.

What to Do When a Child Refuses Visitation

If your child refuses visitation, the first thing you should do is document the incident and notify the other parent immediately. If your divorce case involved a protective order, then you should notify your attorney instead.

Another thing you can do is to involve the other parent and give them some responsibility towards making the visit happen. For example, have the other parent call the child or have them talk to the child in person. Doing this will help the other parent better understand the entire situation. It will also place some obligation on the other parent in facilitating visits. You should never have to force your child to attend visitation.

Immediately contact your attorney if you suspect any abuse from the other parent is factoring in your child’s refusal to visitation. Though, remember that in situations where visitation does not impose danger on the child, you’ll need to prove to the court that you’re doing everything possible to make visitation happen.

If your child refuses visitation, then you could be put into a difficult position. Always make sure visitation does not impose danger on your child. However, you’ll also need to protect yourself from any contempt charges.

Speak to a Child Custody Lawyer

Contact the Law Offices of Rick D. Banks today to speak to a child custody lawyer. We can guide you through this difficult time.

What Happens If One Parent Is Withholding a Child From Another Parent?

Withholding a Child From Another ParentUnfortunately, sometimes divorced spouses can’t seem to co-parent successfully. Ignoring the existing parenting plan, a custodial parent may intentionally prevent the non-custodial parent from seeing their child for months, or even sometimes years. So what happens if one parent is withholding a child from another parent? While many non-custodial parents may simply accept this type of behavior, you do have other options to fix this situation.

When the Parent Withholds Child Visitation Occasionally

When a custodial parent occasionally withholds child visitation and fails to follow the visitation schedule, then that missing visitation time can be made up. You and your ex-spouse will need to schedule dates to make that time up. If you’re the non-custodial parent, make sure to keep detailed records. Record the times and dates your spouse withholds child visitation from you. We recommend keeping a calendar, electronic document, or written journal of those specific times.

If your spouse refuses to schedule these make-up dates, then you have other options. However, remember that retaliating by withholding child support is never a good idea. The child support you pay is not directly related to your right of visitation. By law, your child is entitled to the money you pay for child support. If you retaliate by withholding those support payments, you’re violating a court order, which opens you up to serious penalties. A judge can hold you in contempt of court and impose substantial monetary fines or even jail time. No matter how frustrated you may be, never under any circumstances withhold your court order child support payments.

Another retaliation method that may tempt you is self-help, otherwise known as kidnapping. You as the custodial parent cannot “take” your child whenever you want. If you do so, your spouse, the custodial parent, can call the police and have you arrested for kidnapping. The court will see this arrest in an unfavorable light. Self-help will not help your case.

Instead, if your spouse withholds visitation and refuses to reschedule that time, then seek the help of an attorney. Most often, simply having your attorney explain your willingness to go to court to enforce your visitation rights is enough to scare your spouse into complying with the visitation schedule.

When the Parent Withholds Child Visitation Consistently

If your spouse, as the custodial parent, consistently withholds your right to visitation, there are several things you can do.

The first thing you can do is to contact the police in orders to enforce your right to visitation. However, most police departments will do whatever they can to avoid domestic disputes. Furthermore, seeking help from law enforcement can lead to more hostility between you and your spouse. This will also create unhappy memories for your child.

Your next step as a non-custodial parent is to file a petition in court. In hindsight this is your best option for enforcing your right to visitation. While you can file this petition by yourself, we advise seeking the help of a seasoned family law attorney. With the help of your attorney, your petition will contain all of the necessary information.

Many states take withholding child visitation very seriously. In fact, these states allow a change in custody if the custodial parent consistently withholds visitation. By seeking the help of the court, if your spouse consistently shows they’re unfit to hold custody, the court can transfer custody to you.

Contact a Family Law Attorney to Learn More About What Happens If One Parent Is Withholding a Child From Another Parent

Custody is a deeply emotionally-charged topic. If your spouse interferes with your right to visitation and shows little signs of complying, your best solution is to a hire an experienced family law attorney. Call the Law Offices of Rick D. Banks today.

How Is Property Divided in a Divorce in California?

How Is Property Divided in a Divorce in CaliforniaHow is property divided in a divorce in California?

California law allows you and your spouse to decide how your property will be divided during your divorce. Under community property laws, the assets and debts both you and your spouse acquire during your marriage belong equally to the both of you. Because of this, you and your spouse have equal say in how those assets and debts are divided. While some couples can agree on property division, other couples must seek the help of the court to have the decision made by a judge or arbitrator.

3 Steps to Property Division

Whether you and your spouse are able to agree on property division or you need the court to handle it, there are three important steps to the process:

  1. Determining if your property is marital or separate
  2. Agreeing on the value for marital property
  3. Deciding on how that property will be divided

Community Property vs. Separate Property

Most people assume that any assets or debts gained during a marriage is considered community property. But that’s actually not the case. Property owned by a spouse before the marriage, or property gained through an inheritance or gift during the marriage, is considered separate property. Separate property can also include:

  • assets exchanged or purchased with separate property,
  • value increased on separate property, and
  • earnings gained on separate property.

The above is true as long as the owner of the property can prove their claim through financial records or any other documents.

California law also states that property acquired by a spouse before the divorce and after the date of separation is separate property. Keep in mind that the date of separation is not always the date by which one spouse moves out from the marital home. Instead, this date is the day when one spouse clearly demonstrates their intention of ending the marriage.

When one spouse acquires an unusual amount of money or spends a significant sum before the divorce, the date of separation becomes more complicated. If you and your spouse cannot agree on the exact date, the court will decide it after analyzing all relevant evidence. Generally, courts lean more towards deciding on a later date, rather than an earlier date. This is so that the court determines more of your property as community property.

Changing an Asset From Separate Property to Community Property

Under the law, you and your spouse can agree to change an asset from separate property to community property either before or during your marriage. The same applies to changing community property into separate property. However, these agreements need to be in writing, and they also need to clearly state the intentions of both parties.

There are many different types of assets that can be both community and separate. These type of assets include:

  • retirement accounts where one spouse contributed towards both before and after the marriage, and
  • business accounts one spouse opened before the marriage and maintained after.

Determining Property Value

Spouses or the court can attribute a monetary value to each owned asset. You can get the help of an appraiser to accurately determine the value of real property. Or you can seek the help of a C.P.A for determining the value of financial assets, such as a retirement account.

Dividing Your Property

You and your spouse can divide your assets by assigning items to each other. You can do this by “buying out” one spouse’s share of assets, or by selling your assets and splitting the proceeds. Or you and your spouse can agree to continue to own property together. However, most couples won’t find that decision attractive.

Along with your assets, you must also assign debts acquired during the marriage. Keep in mind that splitting debts will not stop creditors from seeking to collect on either spouse. The best practice would be to pay off any marital debts before you finalize the divorce.

How Is Property Divided in a Divorce in California? Ask a Divorce Attorney

If you have questions about property division in a divorce, contact the Law Offices of Rick D. Banks today.