Family Law

The child support guideline. Child support in California is based on a mandatory uniform guideline which uses an algebraic formula to determine the amount of child support. It is primarily based on each parent’s tax filing status (single, married or head of household) and average monthly income. Allowances are made for mandatory deductions such as federal and state taxes and union dues, but there is no deduction for the parents’ (either the mother or the father) specific living expenses (such as rent, car payment, credit card bills, etc.) Depending on the number of children and the amount of income the paying parent has, the percentage of take-home pay which goes for child support can be anything from about forty percent to fifty percent or more of that parent’s after-tax income.

The other important factor that influences the amount of support that will be due is the amount of time each parent has physical responsibility for the child (called timeshare of visitation). If a parent not living with the child sees the child every other weekend, including overnights, and some additional time such as vacation, that timeshare is about 20%. That 20% timeshare is factored in to the child support calculation, so that the child support ordered represents the contribution the non-custodial parent makes to the custodial parent for the 80% of time that the child is with the custodial parent. In comparison, parents who have no substantive relationship with their child pay more child support because the child is with the custodial parent 100% of the time.

The child support guideline has been in effect since 1992, and is applied by all courts in the 58 counties of California. Judicial officers must order the guideline child support amount, even if the amount of support seems high, unless there are very special circumstances that allow a downward departure from the guideline amount.

Tax aspects of child support. Child support is not tax deductible to the parent paying it, and it is not taxable income to the parent receiving it. Spousal support has a different tax treatment (see below). However, in a divorce or separation case, sometimes a court orders, or the parents agree to, a family support order. This means that the child and spousal support order is combined and characterized as a family support order. The amount of the order is increased, and the entire amount is made tax deductible to the parent/spouse paying it. Family support is usually only ordered or agreed to in cases where at least one parent has an extraordinarily high income.

Allocation of dependency exemptions for minor children. Under state and federal tax law, a parent is entitled to claim a child as a tax dependent if that child has been in the parent’s home more than half of that tax year. In a family law context, this usually means that the parent who is the "custodial parent", or who has the child more than 50% of the time, has the right to claim the child as a tax dependent.

One of the factors in determining guideline child support is a parent’s tax filing status, which includes number of dependency exemptions claimed by that parent on their tax return. If a parent is able to claim a dependency exemption, that parent will also be eligible for the child tax credit and the earned income credit (if available at that parent’s income level).

If you have a child support order, look at the calculation upon which it is based to see how the court allocated the dependency exemption(s). Usually, the dependency exemption(s) is allocated to the custodial parent. Sometimes, a support calculation will release the dependency exemption(s) to the noncustodial parent because that has a better tax effect. This is called a "tactic 9" calculation.

Earning capacity orders. A court usually bases a child support order on the parents’ actual income. Income from all sources (including overtime, bonuses, rental income, investment income, etc.) is considered. If a parent is unemployed or under-employed (below 40 hours per week), a court can base a child support order on a parent’s earning capacity. The court then considers what a parent is capable of earning. The court must find that a parent has an opportunity and ability to work before it can "impute" an earning capacity to a parent. Either a custodial parent or a non-custodial parent can be imputed an earning capacity in calculating guideline child support.

Sometimes each parent is asked to pay child support. If a child is not in the custody of either parent and the child receives welfare, the Local Child Support Agency will sue each parent in order to obtain a child support order. This happens when a child is in group home, foster care, or living with a relative or other caregiver and receiving welfare. If the parents do not live together, they will be sued separately by the LCSA, and their child support obligation will be determined independent of the other parent’s ability to pay child support as calculated under the guideline.

Childcare expenses can be part of a child support order. Separate and apart from the guideline child support ordered, parents also have to share equally any work-related child care expenses (day care, baby sitters) that either or both parents incur. Sometimes the cost of childcare, even when it is equally split with the other parent by court order, can be more than a guideline child support order.

Wage and Earnings Assignment Orders. A court must issue a Wage and Earnings Assignment Order each time a court makes a support order. This Order, once issued by the court, is then provided to the paying parent’s employer. The Order instructs the employer to withhold the amount of support ordered from the employer’s wages, and forward the support payment to the custodial parent (or the Local Child Support Agency, as applicable). The FLF can help you obtain a Wage and Earnings Assignment Order if you do not have one yet.

Child support modifications. Child support cannot be modified (changed) for periods of time in the past (after an order has been made but before a "paying" or non-custodial parent makes a court request to reduce the amount of support, or before the "receiving" or custodial parent makes a court request to increase the amount of support). In other words, the court-ordered child support figure continues in effect until the court later modifies it and makes a new order. The earliest effective date for a modification is the date a parent files a motion (a request for a court order) requesting a modification.

Here’s an example: Let’s say that the court ordered father (the non-custodial parent in our example) to pay mother $500.00 per month in child support in August 1998. Assume that order was based, in part, on father earning $2500.00 per month. Mother learns in September 1998, one month after the order is made, that father is now earning $5000.00 per month, or double his former salary. If mother waits until September 1999 to file her motion requesting an increase in child support, the earliest effective date of the new order is the date she files that motion. She is not entitled to a modification back to (or retroactive to) September 1998, when father’s salary doubled.

What if that father’s salary decreases? Let’s say the court ordered father to pay mother $500.00 per month in child support in August 1998. Assume again that the order was based, in part, on father earning $2500.00 per month. Father loses his job in October 1998, and begins receiving unemployment income of $920.00 each month. If father waits until September, 1999 to file his motion requesting that the court decrease his child support order, the earliest effective date of the new court order is the date he files that motion. Father is not entitled to a modification back to (or retroactive to) the date he first became unemployed. All unpaid amounts owed under the prior order ($500.00 per month) (called back support or "arrears") continue to be owed until paid in full. California law requires that interest of 10% per year is owed on all arrears, and judicial officers are prevented from waiving the interest that accrues on arrears.

What should parents do if they feel entitled to a child support modification? Not wait!

They need to remember that:

Child support is modifiable any time a parent can show the court that a material change in circumstances has occurred since the last order was made; and

If a parent believes there is such a change in circumstances, that parent needs to bring the new information to the court’s attention right away (by filing a motion for modification) in order to obtain a new order that takes effect right away.

Interest on child support. Interest at the legal rate (currently 10 per cent per year) is owed on all unpaid child support (called back support or "arrears"). The interest does not compound, meaning interest does not build up on the interest, but it accrues on the principal amount owed only (the child support amount ordered). Left unpaid, the amount of support arrears owed over time grows to sometimes astronomical numbers once the interest is added on. California law gives judicial officers no power to waive or adjust arrears that have accrued, or the interest that has accrued on those arrears. Some states may have different rules for their child support orders.

Duration of a child support order. A California support obligation ends, normally, when the child turns 18. If the child is 18 but still residing at home, still attending high school full-time and still not self-supporting, then the child support obligation ends when the child graduates high school or turns 19, whichever comes first.

Any arrears continue to be owed until paid in full, regardless of the child’s age. Arrears means that there was a valid court order that support be paid, but the parent ordered to pay support did not pay some or all of the support while the obligation continued. The custodial parent can collect arrears at any time, years after the child grows up.

California law requires both parents to provide health insurance coverage for their child if such coverage is available at no cost or at reasonable cost. What is a "reasonable" cost is different from case to case.

For parents who do not have health insurance coverage for their child, there is a relatively new state program called HEALTHY FAMILIES. Under this program, regular health, vision and dental insurance is available to children up to 19 years old if one or both parents are eligible for the program. If a parent is eligible, the monthly premium costs between $4.00 and $27.00. Program eligibility is determined based on a parent’s income.

For more information and/or for an application, you can contact 1-800-880-5305 Monday through Friday, from 8 AM to 8 PM.
Under California law, both parents are also required to share a child’s uninsured health care expenses (out-of-pocket or unreimbursed expenses such as co-payments) equally. This means that if a child has orthodontia (braces) and the uninsured cost will be $1000.00, each parent will be required to pay $500.00.

Make sure you request this order from the court so it applies in your case.

Spouses can request that the court make a spousal support order as part of a divorce or separation action that a spouse files or responds to. Spousal support is a discretionary order, meaning the court has great freedom in determining what amount of support, if any should be paid in a particular case.

At the "temporary" stage of a case, meaning from the time the case is filed up until the time a Judgment is entered, the court often uses the support guideline to determine what amount of spousal support should be paid. The court is not required to order the guideline amount (compare: the court is usually required to order the guideline amount of child support). The guideline amount is based on each spouse’s income, tax filing status, and certain allowed deductions such as health insurance and union dues.

At the "permanent" stage of a case, meaning after a Judgment of separation or divorce has been entered, the court must consider certain statutory factors in deciding (1) what amount of spousal support to order, if any; and (2) the duration (how many months or years) of the order. The court considers factors such as the age and health of the spouses, the length of the marriage, and each spouse’s job skills. Unless a court has reason not to do so, "permanent" spousal support will have a duration of half the length of the marriage, measured from date of marriage through date of separation.

Unlike child support, spousal support is tax deductible to the spouse paying it, and the spouse collecting it must claim the amount received in any given tax year as taxable income.

Spousal support terminates per court order, upon the death of either spouse or the remarriage of the supported spouse.