Child Support
California Family Code requires that both parents work together to support their minor child in a manner which is suitable to the child's circumstances. A party's right to receive support is not tied to a marital relationship but is the right of the child and includes all children, natural or adopted, in or out of wedlock. To help the courts in turning that into a specific monetary sum the courts codified a support calculation in the Family Code.
Alegebraically stated the equation codified in Family Code §4055(a) is: CS = K [HN-(H%)(TN)]
CS = child support amount;
K = amount of income to be allocated for child support
HN = high earner's net monthly disposable income;
H% = approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent
TN = total net monthly disposable income of both parties.
Otherwise articulated, the three primary factors in a support calculation are:
- Father's income
- Mother's income
- the timeshare based on your visitation order
Income
The court is to calculate the net monthly disposable income of each parent by ascertaining the annual gross income, applying specified deductions and dividing by 12 to obtain the monthly figure. If the monthly figure does not accurately reflect the actual earnings of a party the court may adjust the amount appropriately.
Gross Income
Income is calculated to include income from any source including but not limited to: commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, spousal support actually received from a person not a party to the case at issue, business proprietorship (gross receipts less required expenses), employee benefits, lottery winnings, stock options, and any other source of income.
Income usually does not include lump-sum payment of personal injury award, previously earned overtime which is not expected to continue, received child support payments or public assistance where eligibility is based on need.
It is important that a party's income is properly evaluated and calculated. This can be particularly difficult when a party is doing business in a sole proprietorship or a partnership. It is essential to scrutinize the company's Schedule C on their income tax return and inquire about the reasonableness of claimed business expenses.
Earning Capacity
Where a parent does not have income but has the ability to earn income based either on licensing and training or on previous employment, the court has discretion to impute the salary which that parent should make if that parent were employed.
The reason for this discretion is to provide incentive to both parents to earn a living rather than try to maintain two households on one salary. A salary that was sufficient to maintain one household is rarely if ever enough to support two households. Divorce changes the obligations and expectations of each party.
A party who has stayed home to raise the children may find it difficult to an immediate and successful transition into the work force and may need some financial assistance until that transition is made possible. Under those circumstances it could be argued that pending a reasonable opportunity to obtain employment and earn a salary, income should not be imputed to that party.
Additionally, the party who has traditionally earned the money for the household will not be allowed to "shirk their family obligations" by taking a lower paying job without having to explain this to the court.
*NOTE: an assessment of the payor's earning capacity should not be based on an extraordinary work regimen but rather an "objectively reasonable work regimen" - even if the payor spouse maintained an extraordinary work regimen during the marriage.
Unpredictable Bonus Income - Fluctuating or Seasonal Income
Where a party derives a large portion of their income from bonuses which are unpredictable the court may make an Ostler-Smith Order which grants the payee spouse a percentage of each bonus received and calculates monthly support on the payor spouse's base salary.
Subsequent Spouse Income
Income of a subsequent spouse may not be considered when calculating child support except in determining a party's filing status and income tax liability.
Deductions
After each party's gross income is determined, the net disposable income is calculated by deducting specific amounts attributable to:
- State and federal income taxes
- Union Dues
- Mandatory retirement deductions
- Health insurance and plan premiums
- Child support and spousal support being paid on a prior court order
- Necessary job-related expenses
- Hardship deductions for: extraordinary health expenses, uninsured catastrophic losses, minimum basic living expenses of other supported children not subject to the case at issue
Required Add-Ons
Child support is calculated to manage the disparity between households so that the child's station in life is commensurate with that of his parents'. However, the calculation does not include specific child care and health expenses and therefore the legislature has separately stated that these amounts be ordered in addition to the calculated support.
Child Care Expenses
Child care costs related either to employment or to reasonably necessary education or training for employment skills are to be shared equally between the parties.
Uninsured Health Care Costs
Reasonable uninsured health care costs for the children are to be shared equally between the parties.
The party making the up-front payment must provide an itemized request for reimbursement to the other party no later than 30 days after the expense was incurred. If the requesting parent makes a request for reimbursement that you do not find to be reasonable you must still make the payment and then seek an order from the court relieving you of that obligation. If you request payment from the other parent and they do not provide payment no later than 30 days from notification, you can file a noticed motion to enforce the order.
The court may also order, as additional support, costs related to educational or other special needs of the children or travel expenses for visitation. However, these costs are at the court's discretion and require a specific showing to the court. The court does not have discretion to make other additions to support not listed above.
Rebuttable Factors
Guideline calculated child support is presumed to be accurate which shifts the burden of proof to the party that wishes to contest the guideline amount. To do this, the party, using admissible evidence, must show by a preponderance of the evidence, that application of the formula would be unjust or inappropriate in their particular case. This rebuttal must be based on one of the following factors:
Agreement of the Parties
- 1. They are fully informed of their rights concerning child support
- 2. The order is agreed to without coercion or duress
- 3. The agreement is in the best interests of the children involved
- 4. The children's needs will be adequately met by the stipulated amount
- 5. The right to support has not been assigned to any county under the Welfare Code and no public assistance application is pending
If the local child support agency is providing services in your case, you must have the agency sign the stipulated agreement before the court can make it an order.
Rental Value subsequent to Deferred Sale of Family Home
Where the sale of the family residence is deferred pursuant to Family Code ���§���§3800-3810 and the rental value exceeds the monthly financial liabilities on the property (not including utilities) the difference may be used to offset the excess amount. However, the court is not required to make such a reduction and may determine its own equitable offset.
Payor's Extraordinarily High Income
Where the payor has an extraordinarily high income that parent may making a showing that application of the guideline formula would exceed the children's needs. However, where there is an extraordinarily high earner it may not be appropriate to define the children's needs by their expenses as the purpose of support is also to allow the children to lead a lifestyle commensurate with that of their parents.
*NOTE: a payee parent does not need to justify how the support income is spent and it is permissible, per the family code, for the payee parent to have an increased standard of living as it also benefits the child.
Parent Not Contributing at a Level Commensurate with Timeshare
The presumption that the guideline calculated child support is correct may be rebutted by a showing that a parent is not contributing to the children's needs at a level proportionate to his or her custodial time.
Other Special Circumstances
The presumption that the guideline calculated child support is correct may further be rebutted by other "special circumstance" factors such as:
- 1. The parents have substantially equal time-sharing for the children and one parent has a much lower or higher percentage of income used for housing
- 2. The children have special medical or other needs that require additional support
- 3. Extraordinary debt obligations for living needs
- 4. Low-income exceptions
- 5. One parent has a mortgage-free residence
Timeshare
The court will also consider the respective approximate periods of time which each parent has primary physical responsibility for the child. A parent having custody on a school day will receive credit for that time period if that parent had primary responsibility during that time. Where the parties share the children in a traditional alternate weekend pattern, the primary custodial parent will receive credit for all the time the children are in school and for all weeknights.
If the parents share different children on different arrangements, the ultimate timeshare is calculated as an average of the amount of time the parent spends with the individual children.
Termination of Child Support
Child support traditionally terminates on the first of the following circumstances:
- 1. The child turns 18 (unless that child is a full-time high school student in which case support continues until the child reaches 19)
- 2. The child dies
- 3. The child becomes emancipated (i.e. enters into a valid marriage, is on active duty with the military or petitions for and receives a declaration of emancipation from a qualified court
If you think you may be paying too much in support or not receiving enough, contact the Law Office of Erica C. Affinito for a free initial consultation. There are many factors to be considered when determining an appropriate order for support. Overlooking any one factor can substantially change the amount you pay or receive. Don't get stuck with a bad order, contact the Law Office of Erica C. Affinito today.