April is tax season, when Americans are expected to file both a state and federal tax return. These tax returns detail a person’s income for the year and for that reason, are important documents in determining what amount of child and spousal support should be paid in a California divorce or paternity case. This amount is not static. As a person’s income changes, so does the amount of support that is appropriate in most cases. An increase in the income of the person paying support may mean an increase in the amount of support that is appropriate.
If you believe the income of your former spouse or the other parent has changed, it is beneficial to obtain a copy of their recent tax returns. A San Diego family law attorney can then review the returns and determine whether a change in support may be appropriate. Even if you have no reason to believe the income of your former spouses or other parent has changed, it is wise to obtain a copy of their tax return to confirm there has been no change.
There are several ways to obtain a copy of the other party’s tax return. If you have yet to obtain a judgment, and are able to reach a settlement agreement, one way to obtain a copy of the other party’s tax return is to include in that settlement agreement a provision that each party will provide to the other a copy of their tax returns annually.
Another way to obtain a copy of the other party’s tax return that applies to all California divorce and paternity cases in which there is a support order is to serve the other party with a Request for Production of An Income and Expense Declaration After Judgment (Judicial Counsel Form FL-396). You will need to attach a blank Income and Expense Declaration (Judicial Counsel Form FL-150) to this form. This request may be personally served or served by certified mail, postage prepaid, return receipt requested, to the last known address of the party to be served. This request can be made once per year after the judgment is entered. Once this request is made, the party receiving the request must, within 30 days, complete an Income and Expense Declaration and attach copies of their most recent state and federal income tax returns. The party receiving the request can also request that the other party complete an Income and Expense Declaration and attach their own most recent tax returns. If a party does not comply with this request, they may be subject to contempt or other penalties. Additionally, if the party receiving the request does not provide their completed with attached copies of their most recent state and federal income tax returns within 35 days of service of the request, the requesting party may serve a request on the employer of the other party for this information. The non-complying party may then be responsible for any costs incurred to obtain this information directly for the employer.
Once you have obtained a copy of the other party’s most recent tax returns, a San Diego family law attorney can review the returns and determine whether a change in support may be appropriate. This would also include a review of your current income. If there are child support orders in your case, a recalculation of Guideline child support using any changed income can be done.
If it is determined that a change in support is appropriate, it is important that a motion to modify support is filed promptly. Any change in a support order may only be made retroactive to the date the motion is filed.
Our team of San Diego family law attorneys at Cage & Miles, LLP can work with you to obtain a copy of the other party’s tax returns and an Income and Expense Declaration and, if needed, obtain this information directly from an employer. We can then determine whether a change in support is appropriate. If a change in support is appropriate, our team can work with you to file a motion to modify support.