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The California Family Code considers child support vital to the best interest of children. The three primary issues that determine child support are:
- The income of both parents
- The amount of time which child spends with each parent; and
- The number of children who qualify for support
The issue child support will always exist when two people have a child together. How much you personally will pay or receive in child support will depend on your unique circumstances, and can be affected by factors to too numerous to mention here. I have attempted to his what tend to be the most common issues, but this page is by no means exhaustive. I invite you to call or set up an appointment so that we can discuss your case.
- How is child support determined?
- How Does Being Unemployed Affect Child Support?
- Are there deductions that reduce child the support amount?
- What are mandatory and discretionary child support add-ons?
- Can the amount of child support I am paying or receiving ever change?
- Back child support
- Can child support be modified without a court order?
- My Ex Got Remarried: How Will This Affect My Child Support?
How Is Child Support Determined?
On the surface, this seems like a pretty straightforward question. Support is based on the income of both parents and W2’s are presumed to accurately show income. Then you plug some numbers into a computer program and the program spits out a number. But an examination of Family Code Section 4058 sets out in detail what a court considers when arriving at a child support number.
Most obviously, what a person makes at their job is income. This includes, salary, wages, and commissions, but that certainly does not cover all the possibilities. Income also includes money from rental property, pensions, interest on certain assets and investments, income from trusts, unemployment and workers comp insurance benefits, social security benefits, spousal support from another party, and more. Also, if you or your spouse owns a business, gross receipts minus certain allowable deductions may be used to arrive a child support number.
All of that said, there are certain things that do not count as income. Any income derived from child support, payments received from any public assistance program, or child support received from another party for a child not of the relationship before a court are not considered income for child support purposes. In other words, if Wendy is receiving support for a child she had with a different person before she and Harold were married, that support would not count as part of Wendy’s gross or net income.
Other income that does not qualify as gross or net income includes life insurance death benefits, although interest derived from such benefits may be included as income. If you have received money from a personal injury claim then that money is generally not counted as income, nor is speculative income (money that might be made in the future, unless there is some past indicator such income is likely).
How Does Being Unemployed Affect Child Support?
If you are not currently working or have not worked in a long time, the court can look at what your earning capacity would be if you were to enter the workforce. Even if a person has little to no specific marketable kills, the court may “impute” full or part-time minimum wage because both parents have an obligation to support their children. There can be exceptions to this if for example a person has serious medical condition that prevents them from working. But let’s take a look at the following example:
(font?)Wendy and Harold have been married for 10 years and have 2 children. Right after they got married they decided that Wendy would stay home in order to take care of the kids and the family home. Indeed, within a year of getting married, Wendy gave birth to their first child, and two years later, their second child was born. As agreed, Wendy did not work, nor did she go to school to further her education. During that time, Harold advanced in his job and now makes $75,000 a year as the family’s sole breadwinner.
(Font?) Unfortunately, Wendy and Harold have made the decision to divorce. Considering the fact that Wendy hasn’t worked in so long, will she be able to argue that she should receive child support based on $0 in income? It depends on many factors, but you can be sure that Harold is going to argue that Wendy should be imputed some form of minimum wage because she is physically capable of working, despite the fact she has not worked in 10 years and has few, if any, marketable skills.
Here, a court has discretion to impute income to Wendy if she has the ability and opportunity to work. This will affect both the amount of child and spousal support Wendy is going to receive from Harold.
The above hypothetical is a very simplified scenario because there can be numerous factors that can alter it, such as the amount of time each parent has, currently is, and will foreseeably be spending with the kids. As I say throughout these pages, your situation is unique, so how much you will be required to pay or how much you are entitled to receive is going to depend on your situation.
Are There Deductions That Reduce The Child Support Amount?
The short answer is yes. The following are some factors that will be taken into consideration when a court attempts to arrive at a fair number:
- Union dues
- Mandatory retirement contributions
- Certain medical expenses
- Health insurance
- Job-related costs
- Property tax
- Child and spousal support from another relationship
- Hardship deductions including extraordinary healthcare expenses, uninsured catastrophic losses, and more
There may be other deductions, but as always, your case will have facts unique to it and thus, there may be deductible items not listed here.
What Are Mandatory And Discretionary Child Support Add-Ons?
Mandatory add-ons are expenses a court takes into account when trying to arrive at a number for child support. These add-ons include:
- Childcare costs related to employment or to reasonably necessary educations or training for employments skills.
- Reasonable uninsured healthcare costs for children
- Costs related to the educational or other special needs of the kids
- Travel expenses for visitation, such as when it costs a parent a significant amount of money to visit the child
With respect to discretionary add-ons, a court has the authority to decide whether or not a parent will have to contribute to certain things, and the decision will usually rest on each person’s ability to pay. The following are common discretionary add-ons:
Special Needs: quite often children have physical or learning disabilities that require extra costs for treatment, transportation, educational needs, and more. While this is considered a discretionary area, courts tend to be sympathetic to these situations. Thus, orders requiring each parent to provide financial support for the costs of a special needs child are not uncommon.
Private School: here conflicts often arise between parents when one wants the child to go to a private school, but the other doesn’t want to pay for it. The question here is whether one parent can force the other to pay money for tuition. Among other things, the court will consider if this is the first time the child is going to attend a private school, or if this has been the norm for several years. If the child was already in a private institution when the parents split up, the court may be more inclined to require each parent to pay tuition and other associated costs, and less inclined if this is going to be a new endeavor.
Extracurricular Activities: depending on the circumstances, parents can and should agree to share in the costs of these without court intervention. However, this is often not the case and so the court has discretion to require parents to share the costs of football, cheerleading, academic clubs, and so on.
Can The Support I Am Paying Or Receiving Ever Change?
Yes. The key term used when one seeks to have their child support decreased or increased is Change of Circumstances. Such a change must be significant. So what constitutes a change of circumstance? Usually it is one of the following:
- When a parent’s income has increased or decreased
- When a parent has another child
- The needs of the children have changed, such as increased medical expenses
- Custody/Visitation has changed. As time goes on, it may be that a parent becomes more capable of spending more time with the kids, or one or more of the children will express a preference for which parent they wish to live with.
In the event of one or more of the above circumstances, your order will remain in effect until you ask the court for a modification of your original orders, and the court grants those orders, and not until then. Until there is a court order modifying support, the original order(s) stay in effect.
For example, if your circumstances significantly changed two years ago, but you are only asking for a modification now, the court may very well grant your modification, but it will not make the order retroactive to the time your circumstances changed.
Thus, if your circumstances do change, it is best to take action as soon as possible in order to get a modification.
Back Child Support
California Family Code 4009 grants courts permission to make an original order for child support retroactive to the date of filing the petition, complaint, or other initial pleading. That is, if child support is not paid, the court can make the non-paying parent make up for the payments they failed to make. Obviously, this can add up fast. Payment of court ordered child support must be made before paying any other creditor. Penalties for willfully failing to pay the court ordered amount may include some or all of the following:
- Wage garnishment
- A misdemeanor charge
- Revocation of your driver’s license
- An increase in payments to make up for what you have not paid
- Any state professional license you have could be suspended
- Your credit score could be impacted
- A lien against any property you own could be ordered
- If you remarry and your spouse owns property that property may be accessed to satisfy child support obligations
Further, once a child who turns 18, if you have not paid all your required support you will still be required to make up for it. This means you could be paying child support well past your child’s 18th birthday.
There is hope though. Sometimes circumstances befall us and we become unable to make the ordered support payments. If you have missed payments through no fault of your own, it may be possible to get the past due amount and future payments reduced until you’re able to get back on your feet. This is not an uncommon event, so if this is your situation, don’t feel alone, and don’t feel hopeless, but do take action to take care of it.
Can Child Support Be Modified Without A Court Order?
In short, no. Remember that you are obligated to pay the court ordered amount of support until the court grants a request to modify the original order. It does happen though that following a court order, whether it be a few months down the line, or even several years, that parents will of their own accord agree to reduce a child support payment for whatever reason. Problems can arise from such an agreement though. Take the following hypothetical for example:
A court has ordered Henry to Pay Wendy $500 per month in child support. For 3 years, Henry is able to make his support payments like clockwork on the first of every month until one day he’s suddenly laid off from his job. It takes him a couple of months to find new work, but in the meantime he has been able to continue to make the monthly $500 payment. Now though, his savings have been drained and his new job pays only a fraction of what he used to make, which means he can no longer afford to pay Wendy $500 per month. Wendy is understanding and agrees to accept just $100 a month until Henry gets to a point where he can make the same salary he used to.
The question here is whether the agreement Henry and Wendy made is legally valid, and the answer in the immediate term is probably not.
For example, if Wendy were to apply for certain state benefits, the state would want to know what her sources of income were. Among those sources would be the court-ordered child support from Henry. The state could then come after Henry for the money he hasn’t been paying. Henry may very well suddenly find himself in debt he never anticipated despite the good faith agreement he made with Wendy.
The lesson here is not to wait. Call an attorney as soon as you can who can draw up a new agreement so that you do not end up like Henry. In the above scenario, it is likely that Wendy would agree to at least a temporary modification as long as Henry agreed to resume to pay more when his circumstances improved. The main priority here is to keep things from spinning out of control, and you can do that by being proactive.
My Ex Got Remarried: How Will This Affect My Child Support?
It is logical enough for people to believe that when their ex marries a new spouse, and that new spouse has a job and makes money, that this will increase the amount of child support because now there is more household income. However, the amount of support will most likely not increase or decrease because income is not imputed to the new spouse. An exception to this is if there is an extreme and severe hardship to the child.
For example, say your ex has been working and paying child support from his wages. Then one day he remarries and subsequently quits his job because his new spouse makes lots of money and they decide he doesn’t need to work anymore, and now, because he has no income, he cannot continue to pay child support. In such a case, a court could then very well include his new wife’s income so that he can continue to make his court-ordered child support payments. But this is a rare scenario because most people keep working, which means that more child support is not in order.
As I said at the outset, this is not a detailed discourse on all the issues and facts that can be involved in child support matters. Your case may be relatively simple, or it may be quite complicated. It probably falls somewhere in between. Whatever your situation is, I would like to hear from you so that we can set up an appointment to discuss your case in detail. Remember that consultations are always free.
This page is for informational purposes only. It is not intended to be advice for your specific matter and does not constitute the establishment of an attorney-client relationship.