[castepmom]

Hi, my new husband has been paying child support for his two child that live in Ca, we live out of state. There is a CA support order in place and he pays $800 per month which includes arrears. He is currently in arrears for appox 10K due to fees and fines that just increase every month because the interest is so high and we cannot make a lump sum payment. Today he received a notice from Child support services in Orange County that they have sent written request to my employer to obtain income verification. Is it likely that I will end up being garnished? I love my step kids and plan to fight their mother for increased visitation but we are already aware the $800 she is already receiving is not being used for the purpose of taking care of these kids but more so in paying for her lifestyle and nights on the town. It is a bit disheartening as it is for many noncustodial parents.

[stevetcg]

You cannot be garnished for your husband's child support. Your income may be used to calculate how much he owes, however. It varies by state.

What his ex uses the money for is irrelevant, although I understand that it can be frustrating.

[cadillac59]

Hum. This raises an interesting question and, although I was inclined to agree with stevetcg at first, I'm going to have to give this a bit more thought and maybe even research it a bit.

It's true that you are not directly responsible for your husband's child support and it's true that your income is considered in setting his child support if you file a joint return because the tax effect of doing so must be taken into account. For example, if you make as much or more than him, he will have less net [after tax] income and his support will go down-- it works the other way too-- if you make less than your husband and file a joint return his support will go up, The reason for this is that a new spouse's income is not considered income of the obligor-spouse in fixing child support (there is a very rare exception to the rule that is almost unheard of in practice), but, if the parties file a joint return the obligor is liable for 1/2 of the tax on the new spouse's income. Hence, when the new spouse makes more than the obligor spouse, the obligor spouse has more taxes to pay on the same income (as far as the DissoMaster or other computer support calculator knows), therefore support goes down. If the new spouse doesn't work or makes less than that obligor spouse, a tax benefit is realized in that joint filing is a lower tax bracket than married separate; hence, a tax savings which means more child support is owed.

Now, you might be surprised to learn this but if you lived in California your earnings could be reached to satisfy your husband's child support debt. Why? Because California is a community property state, a spouse's earnings are community property, and the community property is liable for past (pre-marital) debts of a spouse. His child support is a pre-marital debt. See the logic of it? So check this aspect of the law out in your jurisdiction.

In California, if a non-obligor spouse takes his/her earnings and places them in a separate account to which the obligor spouse has no access then they can be sheltered. But they are otherwise liable for his/her CS debt.

Can DCSS get a wage assignment against you? I doubt it and have never seen it, but frankly I need to look into it to be sure (my guess is no).

[cadillac59]

After thinking about this and checking the family code on wage assignments it seems clear to me your wages cannot be subject to garnishment. The reason is the code appears only to authorize wage assignments against obligors, not their spouses.

But, as I said, be forewarned: if you live in a community property state your earnings are community property and may be liable for his child support debt.

[castepmom]

Thank you for answering my question. I did not mention in my original post that I do earn more than my husband and currently we do plan to file a joint return. Whether the support order decreased is not important, I just needed the reassurance that I most likely could not be garnished. We live in Oregon and the custodial is in California. I appreciate the comments you left.

[JudyKayTee]

I do not believe a person's wages can be garnished for the spouse's child support. Total income, of course, can be considered but this would be a garnishment against, technically, a third person.

[artlady]

In New York my girlfriends entire tax return was taken for arrears for her stepson.

Here is a link I think you will find helpful.

http://www.childsupportlaws.ca/

[JudyKayTee]

In New York my girlfriends entire tax return was taken for arrears for her stepson.

Here is a link I think you will find helpful.
Child Support Laws

That's a great link but it's Canada and I believe OP is in California - or not?

I don't understand in NY how a stepmother's tax refund (unless it was a joint return) can be taken for support of a stepchild. Did they give her any law or statute? Never heard this before - and I worked in a Family Law firm for a period.

I do find this:

Statutory Duty of a Stepparent to Support a Stepchild:

Under the common law, a stepparent has no duty to financially support a stepchild during the marriage to the child's natural parent merely by reason of the marriage. Stated otherwise, the relationship of stepparent and stepchild does not, in and of itself, impose any obligation of support. A stepparent is obligated to support a stepchild during the marriage where (1) there is a statute imposing such a duty, or (2) the stepparent undertakes to act in loco parentis to the child.

Twenty states now have statutes imposing a duty on stepparents to support their stepchildren:

(1) Delaware: Del. Code Ann. Tit. 13, 501(b) (1994) (stepparent liable for support of stepchild during marriage);

(2) Hawaii: Haw. Rev. Stat. 577-4 (1993) (stepparent liable for support of stepchild during marriage);

(3) Iowa: Iowa Code Ann. 252A.2(3) (Supp. 1996) (including stepchild in definition of children to whom a duty of support is owed);

(4) Kentucky: Ky. Rev. Stat. Ann. 205.310 (Michie 1995) (stepparent has duty to support stepchild during marriage);

(5) Maine: Me. Rev. Stat. Ann. Tit. 19, 752(6) (Supp. 1995) (support may be ordered against third party where such party takes custody after divorce after showing of parental unfitness);

(6) Missouri: Mo. Ann. Stat. 568.040 (Vernon Supp. 1996) (criminal nonsupport statute applies equally to parents and stepparents);

(7) Montana: Mont. Code Ann. 40-6-217 (1995) (if stepparent receives stepchild into family and supports him or her, stepparent is presumed to do so as a parent);

(8) Nebraska: Neb. Rev. Stat. 28-706 (1995) (criminal nonsupport statute applies to stepparents);

(9) Nevada: Nev. Rev. Stat. Ann. 62.044 (Michie 1996) (stepparent liable to same extent as parent for neglect and dependency of child);

(10)New Hampshire: N.H. Rev. Stat. Ann. 546-A:1, 546-A:2 (1974) (stepparent owes duty of support to stepchild during marriage);

(11) New Jersey: N.J. Stat. Ann. 30:4C-2 (West Supp. 1995) (includes in definition of child under neglect and dependency proceedings a stepchild);

(12) New York: N.Y. Fam. Ct. Act 415 (Consol. 1983); N.Y. Soc. Serv. Law 101 (McKinney 1992) (stepparent liable for support of stepchild to prevent the same from becoming a public charge);

(13) North Carolina: N.C. Gen. Stat. 50-13.4 (1995) (any person standing in loco parentis to child has duty of support);

(14) North Dakota: N.D. Cent. Code 14-09-09 (1991) (extending stepparent support duty during the marriage and so long thereafter as the stepchildren remain in the stepparent's family);

(15) Oklahoma: Okla. Stat. Ann. Tit. 10, 15 (West 1987) (stepparent has duty of support to stepchild);

(16) Oregon: Or. Rev. Stat. 109.053 (1990) (stepparent has duty of support to stepchild);

(17) South Dakota: S.D. Codified Laws Ann. 25-7-8 (1992) (a stepparent shall maintain spouse's children born prior to the marriage);

(18) Utah: Utah Code Ann. 78-45-4.1 (1992) (imposes support duty on stepparent that terminates on divorce);

(19) Vermont: Vt. Stat. Ann. Tit. 15, 296 (1989) (stepparent has duty of support of stepchild);

(20) Washington: Wash. Rev. Code Ann. 26.16.205 (Supp. 1996) (imposes duty of support on stepparent which shall cease on termination of relationship between husband and wife).

The Doctrine of In Loco Parentis

In the absence of a statute, under the common law, marriage alone does not obligate a stepparent to support his or her stepchild. Where, however, the stepparent acts in loco parentis to a stepchild, then the stepparent assumes an obligation to support the stepchild. Stated succinctly:

The universal rule is that a stepparent, as such, is not under obligation to support [his or her stepchildren], but that, if he or she takes the children into his or her family or under his or her care in such a way that he or she places himself or herself in loco parentis, he or she assumes an obligation to support them, and acquires a correlative right to their services.

Divorce Source: Table: Statutory Duty of a Stepparent to Support a Stepchild

[artlady]

I don't understand in NY how a stepmother's tax refund (unless it was a joint return) can be taken for support of a stepchild. Did they give her any law or statute? Never heard this before - and I worked in a Family Law firm for a period.

I don't know how they did but they did.He was waiting on social security disability so I don't even think he had an income.Shes a pretty bright cookie so I doubt she would have allowed it to happen if there was anything to prevent it.

[JudyKayTee]

I don't know how they did but they did.He was waiting on social security disability so I don't even think he had an income.Shes a pretty bright cookie so I doubt she would have allowed it to happen if there was anything to prevent it.

Frightening - you hear about senior citizens who don't marry because they can't afford to use their widow/widower SS benefits. Next it's going to be people who might have to support stepchildren.

I know in some States the household income is taken into consideration because of the parent and step parent both work the parent (obviously) doesn't have the entire burden of paying rent, food, utilities, etc. But to hold the step parent responsible - wow.

[cadillac59]

Thank you for answering my question. I did not mention in my original post that I do earn more than my husband and currently we do plan to file a joint return. Whether or not the support order decreased is not important, I just needed the reassurance that I most likely could not be garnished. We live in Oregon and the custodial is in California. I appreciate the comments you left.

If you make more than your husband and file jointly you should re-evaluate support. As I said his support will go down in this case because your income cannot be added to his to assess support but the added tax burden is considered.

If you want to relate what his income is, what yours is, what the timeshare is, the mom's income info and the number of kids I'll run a quick DissoMaster on it an tell you what support should be. Also include your mortgage interest deduction and property tax deduction, union dues, mandatory retirement, health insurance deductions from his check. Without detailed income and expense info in both sides I can only ballpark it for you.