CHILD SUPPORT ISSUES IN CALIFORNIA FAMILY LAW
Child support must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states, Family Code Section 4053.
Child support is the amount of money that a court orders a parent to pay each month to help support the child’s living expenses. California Family Code §4057(a) states that the guideline amount of child support, as determined by the formula, is “presumed to be the correct amount of child support to be ordered”.
In addition, Federal and California laws require that every child support order includes an order of provision to provide health insurance for the child(ren) as long as it is available at a reasonable cost. Family Code Section 3750 states:” Health insurance coverage” as used in this article includes all of the following;
- Vision care and dental care coverage whether the vision care or dental care coverage is part of existing health insurance coverage or is issued as a separate policy or plan.
- Provision for the delivery of health care services by a fee for service, health maintenance organization, preferred provider organization, or any other type of health care delivery system under which medical services could be provided to a dependent child of an absent parent.
How is Child Support Calculated?
California courts are required to order the amount of child support that is determined by the child support guideline. There are many factors that go into figuring out guideline child support. Several factors come into play when determining who pays who and how much. These factors include:
- The needs of the child(ren);
- The income and needs of the custodial parent;
- How much money the parents earn or can earn;
- The child’s standard of living before divorce or separation;
- How many children the parents have together;
- Health insurance expenses;
- Mandatory Union Dues;
- Mandatory retirement contributions;
- The cost of sharing daycare and uninsured health care costs.
You will be asked to complete an Income and Expense Declaration, under penalty of perjury, detailing your current income and expenses. Information from this form, your income taxes among other factors, will be used in a computer program to determine support.
The court considers both parties’ net disposable income to calculate child support. To do this the court determines the annual gross income and then subtracts certain deductions.
What is Considered Income?
Income: Some, but not all, examples of income that can be used to determine support are:
- Salary and wages, self-employment income;
- Bonuses & commissions;
- Workers Compensation Benefits;
- Rental income;
- Spousal Support from a person who is not the other parent in the child support action, etc.
Gross income does not include public assistance benefits or child support that’s received by one parent. (Cal.Fam.Code §4058)
Examples of Deductions:
- State and federal tax obligations;
- Union dues;
- Necessary job-related expenses;
- Health insurance premiums;
- Hardships such as basic living expenses for children from other relationships, health expenses;
- Mandatory payroll deductions;
- Property taxes;
- Child care costs.
Next, Timeshare: This is where it can get tricky. How does the court figure in the time when the child isn’t actually with either parent but in school, or child care? The court uses a computer program that calculates time-share based on many variables embedded in a complex math formula. You can click here to find the program.
However, the court has great discretion in ordering child support and can order an amount that is different than what is generated from the computer report.
The court will also look at which parent has the primary responsibility of the day to day management of the child. The court looks at such factors as who picks the child(ren) up when they get sick, who provides the transportation to and from school, who pays the education costs and who attends school functions. All of this is figured into the computation. However, the court has great discretion in ordering child support and can order an amount that is different than what is generated from the computer program.
What if One Parent is Not Working?
California courts have approved support awards based upon the earning capacity, instead of the actual income, of the supporting spouse in cases where ” ‘it appears from the record that there is a deliberate attempt on the part of the [spouse] to avoid his [or her] financial family responsibilities.
Sometimes one parent isn’t working because they were a stay at home parent and sometimes one parent underworks or quits their job to avoid support. Judges look down on the latter, and if the court finds that to be the case, it can impute income to that parent. Family Code §4058 (b)The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.
Why Would the Court Order Child Support That is Different Than the Guideline?
- One parent’s income is so high that guideline support would exceed the child(ren) needs;
- One parent is not contributing to the children’s needs at a level that is appropriate considering the amount of time the parent spends with the children;
- The parents spend almost equal time with the child(ren) but one parent uses a much higher or lower percentage of income on housing;
- The child(ren) have special needs that require a greater amount of support.
Can I Stop Paying Support When My Child Turns 18 Years Old?
Generally, you are obligated to pay child support until the child turns 18 but there are some exceptions:
- If the child turns 18 and is a full-time high school student, and not self-supporting, the duty to pay child support extends until the child is 19 years old or completes 12th grade, whichever is sooner;
- Both parents, if able, have a duty to support a child of any age who is incapacitated from earning a living and doesn’t have sufficient means to live;
- There is no obligation to pay child support when a child is legally emancipated;
- Parents can agree to a child support order that extends longer than what is required under the law.
The short answer is “no” you cannot simply “stop” paying unless your order specifically says that support shall end at the age of 18. In some circumstances, you may need to file a motion to modify. Call a Santa Rosa Child Support Attorney today at (707) 528-1100 for a consultation.
Can My Spouse and I Agree to a Non-guideline Support Order?
Yes, in some cases but only if both parties agree. If parties agree to an amount different than guideline (higher or lower) support the following must be stipulated to and put in writing to be signed by the judge and made an order of the court before any change can be made:
- Parents must know their child support rights fully;
- Know the guideline child support amount;
- Are not pressured or forced to agree to this child support amount;
- Are not receiving public assistance;
- Agree to an amount of support that will meet the needs of the children;
- Think that the child support amount is in the best interest of the children;
- Have a judge approve the amount of child support payments.
Can I Modify a Child Support Order?
If child support is under guideline, you can ask for a modification anytime. You do not need to show a change in circumstances. However, if you have had a change in circumstances, such as a major loss of income, another child from a different relationship or a change in the custodial timeshare, etc., you may want to modify your current support order and you should do so now.
The Law Office of Carolyn Vandyk is here to answer your questions and help guide you through this very important part of your divorce. Do not delay, judges cannot order retroactive support! Please call us today at (707) 528-1100.
Does the Court Consider the Income of My New Partner When Determining Support?
In most cases, your partner’s income is not considered in determining support. However, in some circumstances whereby not considering the new income, creates a hardship on the child, income may become a factor. If you are concerned about how your child support will be determined, please call the Law Office of Carolyn Vandyk today at (707) 528-1100 for a consultation.
Do I Have to Pay Support if I Am Incarcerated?
If the Department of Child Support (DCSS) oversees your support payments and if you are incarcerated, your support payments will automatically be suspended after 90 days. If DCSS is not involved in your case, then you need to request that the payments be suspended after 90 days of incarceration, you can do so for no fee by contacting your Family Law Facilitator’s Office.