Child Support Laws in California
Under California Family Code Section 4055, the two most important factors to determine which spouse pays child support and in what amount are: (1) each spouse’s net disposable income, See FCS 4059; and (2) the amount of time that the child spends with each parent
In contested divorce cases, spouses might fight for physical custody of a child in order to increase/decrease their child support exposure. Similarly, a spouse (particularly a self-employed spouse) may intentionally misrepresent income. Divorce310 has expertise to gather evidence and make persuasive arguments to the court in order to get accurate child support orders.
California Family Code Section 4053 states these principles:
(a) A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent’s actual income and level of responsibility for the children.
(d) Each parent should pay for the support of the children according to the parent’s ability.
(e) The guideline seeks to place the interests of children as the state’s top priority.
(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes.
(h) The financial needs of the children should be met through private financial resources as much as possible.
(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.
(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
(l) Child support orders shall 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.
Child support in California is determined by a complex formula contained in FCS 4055.
Unintended, undesirable effects of California Child Support laws
Because child support payments depend largely on: (1) each parent’s net disposable income, and (2) the amount of time each parent spends with the child, a parent may act inappropriately to get more money (pursuant to a child support order) from the other spouse. Examples of such behavior are:
Frustration of the other parent’s visitation, typically intentional behavior by one spouse to prevent the other parent and child from having their scheduled visitation. Please read our articles about parental gatekeeping and parental alienation for a more in depth discussion.
A parent obtains a court order for increased custodial time solely to reduce child support exposure, not because the parent actually wants to spend more time with the child. Sometimes the child may be left alone, with siblings, or a significant other instead of spending time with the parent. This is a sad consequence, but it really does happen.
A parent abstains from seeking gainful or full time employment, while enjoying spousal and child support payments. The obligation to support the child is borne by both parents, so both parents have an obligation to work and earn money for the benefit of their child.
A spouse lies about their income, which is more difficult to detect and prove when a spouse is paid in cash. Alternative ways to determine income include using the spouse’s monthly expenses and debt.
Do California courts have to follow Guideline Child Support orders?
Yes, with few exceptions. Guideline support carries a rebuttable presumption of correctness. Under FCS 4057(b), the court may vary from Guideline support under the following circumstances:
(1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065.
(2) The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 and the rental value of the family residence where the children reside exceeds the mortgage payments, homeowner’s insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount.
(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.
(4) A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time.
(5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following:
(A) Cases in which the parents have different time-sharing arrangements for different children.
(B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent.
(C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount.
(D) Cases in which a child is found to have more than two parents.
May parents agree to a lower or higher child support amount than Guideline support?
Yes. The Judge must sign off on any such agreement, but will typically do so unless the amount is significantly lower than Guideline (because the Judge will be concerned about the child receiving inadequate support). A lower than Guideline stipulated support agreement can be modified “up” to Guideline without showing a change in circumstances.
California Child Support law mandates a health insurance provision
Under FCS 3751(a), child support orders must require one or both parents to maintain health insurance for the child if it’s available “at no cost or a reasonable cost.” The cost is presumed reasonable if it is 5% or less than the parent’s gross income.
What are California Child Support Add-Ons (Mandatory and Discretionary)?
Private school: The court may order private school costs to be paid: “A child is entitled to an award of private school tuition where appropriate to his parents’ income.” IRMO Aylesworth (Cal. Ct. App. 1980) 106 Cal.App.3d 869, 878. In this case, the court ordered additional child support to cover a child’s tuition at Crossroads in Santa Monica, California. Whether or not a court will order extra child support for private school is discretionary. When a child has special needs (the child in Aylesworth cited above had epilepsy), the court is more likely to award extra support money for private school.
Extracurricular activities: The court likely will order parents to split the cost of mutually agreed upon extracurricular activities, particularly if the child has been involved in the activity prior to the divorce. Ability to pay is a factor. Sometimes parents disagree as to which sport (e.g. hockey, baseball, football) a child will play or wants to play. The court must grapple with multiple factors such as what the child wants and whether the spouses can afford the activity in question. In the simplest case, parents and child agree on activities and both parents can afford the time and money needed to support the child in their pursuit of the activity.
How do I begin the Child Support process in Los Angeles?
Initiating a request for child support in Los Angeles may begin with filing a Petition for Dissolution, followed by a Request for Order FL-300 which may include a request for an order regarding child custody. Note that a child support order is normally retroactive to the date the request (for child support) is filed.
Child Support Services may also open a case on behalf of a spouse requesting child support.
How do I complete an Income & Expense Declaration FL-150?
The Income & Expense Declaration must be filed and served with any request for child support, spousal support, and/or attorney fees. This is logical since any monetary award will depend on the spouses’ relative income. It is critical to be open & honest about your income (especially) and expenses, because the court may heavily rely on this document. If the other spouse later obtains evidence that the supported spouse was untruthful, that can form the basis of a motion to set aside the prior court order.
Employed spouse: You must include two months of pay stubs if you are employed, and be prepared to present your most recent federal tax return at the hearing. Self-Employed spouse: Attach a Profit & Loss (“P&L”) Statement covering the previous two years or a Schedule C from your most recent federal tax return.
What is the deadline to respond to a child support request for order in Los Angeles?
The deadline to file a response to any Request for Order is nine court days before the hearing. The moving party may (but is not required to) file a Reply at least five court days before the hearing date.
Can Child Support be retroactive? How far back can an order relate?
Under the plain language of FCS 4009: “[T]he trial court the legal authority to make an original order for child support “retroactive to the date of filing the petition, complaint, or other initial pleading.”” In re Marriage of Barth (Cal. Ct. App. 2012) 210 Cal.App.4th 363, 373. Note that the California Legislature amended this statute in 1999 to clarify that a child support order may relate back to the date of filing of the Petition.
How can a Child Support order be modified in Los Angeles?
Modifying a child support order in Los Angeles can be accomplished by filing a Request for Order to Modify Support, along with an Income & Expense Declaration. Under FCS 3653(a): “An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666(a)(9)).”
What role does “change in circumstances” play in modifying a Child Support order in Los Angeles?
A change of circumstances sufficient to warrant modification of a child support order in California could be a material change in income (of either spouse), or a material change in custodial time.
Whether and when to seek modification of a support order is a strategic decision, which must be assessed according to the facts of your particular case. Contact David Weber at DIVORCE310 to discuss your case and secure legal representation.
Can I appeal a temporary Child Support order in Los Angeles?
Yes, in some circumstances. When the court has nothing more to decide after making an order, and all that is left is enforcement of the order, direct appeal may be taken. IRMO Weiss (Cal. Ct. App. 1996) 42 Cal.App.4th 106, 119 (Direct appeal from pendente lite order of attorney fees lies “where nothing remains for judicial determination except the issue of compliance or noncompliance with its terms.”). In other words, when a temporary support order has all of the elements of a final judgment, the order is directly appealable.
When evidence shows that a spouse committed perjury or fraud to obtain temporary child support or temporary spousal support (e.g. intentional misrepresentations on the Income & Expense Declaration), a spouse may move to set aside the temporary order under FCS 3691.
What is considered income for Child Support purposes in Los Angeles?
The court will use a parent’s annual gross income to calculate child support and temporary spousal support.
Under FCS 4058, your annual gross income is “income from whatever source derived” 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, and spousal support actually received from a person not a party to the proceeding.”
Under FCS 4058(c), annual gross income does not include income from child support received, need-based public assistance programs, and child support payments received by virtue of another relationship. Income does include:
Can I use my tax return to prove income for child support in California?
If a spouse does not receive a paycheck, a tax return is presumptive evidence of your income. Income stated on a tax return is presumed to be accurate, the other spouse may present evidence to call its accuracy into question. In IRMO Calcaterra & Badakhsh, the court decided that Mom’s income was equal to her average bank deposit, while Dad’s income included the amount stated on a residential loan application. (Cal. Ct. App. 2005) 132 Cal.App.4th 28, 33.
In the case of a self-employed spouse, it may be worthwhile to seek evidence of income from sources other than the tax return, such as obtaining evidence of a loan or credit card application. David Weber at Divorce310 has the skill and experience to obtain such evidence of income and put it to use in the courtroom.
What if one parent refuses to work while collecting child support?
Under FCS 4058(b), the court may use a parent’s earning capacity to calculate child support instead of the parent’s actual income. We call this imputed income – it is not the parent’s actual income, but rather the income that the spouse could be earning. The idea is to motivate the parent to get to work for the benefit of the child. The method of persuading the court to impute income varies depending on the circumstances.
The court may impute income to a parent upon finding that work is available, the parent is able to work, and imputing income is in the child’s best interests. Sometimes a child has special needs which requires a parent to be a part or full time child caretaker, so working is not an option.
What if one parent refuses to work while collecting child support in California?
Yes, in some cases the Judge may impute income based on an assumed, reasonable rate of return on a parent’s assets. The odds of this argument actually succeeding will depend on the particular circumstances of the case and the Judge.
Is California child support affected if my wife or husband has a new spouse?
The short answer is NO, because only the biological parents are responsible for paying child support. An anomaly may result if a supporting spouse marries a high earner and the newly married couple files a joint tax return which places the supporting spouse in a higher tax bracket: The supporting spouse has less net disposable income which causes his/her child support payments to decrease.
Under FCS 4057.5(a)(2), the income of a new spouse or intimate partner may be considered only in an “extraordinary” case. Here is what the statute says: “The income of the obligee parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee’s subsequent spouse or nonmarital partner.”
Which deductions are subtracted from a parent’s gross annual income to calculate annual net disposable income for purposes of California child support?
FCS 4059 tells us how to calculate net disposable income for purposes of calculating child support in California:
The annual net disposable income of each parent shall be computed by deducting from the parent’s annual gross income the actual amounts attributable to the following items or other items permitted under this article:
(a) The state and federal income tax liability resulting from the parties’ taxable income. Federal and state income tax deductions shall bear an accurate relationship to the tax status of the parties (that is, single, married, married filing separately, or head of household) and number of dependents. State and federal income taxes shall be those actually payable (not necessarily current withholding) after considering appropriate filing status, all available exclusions, deductions, and credits. Unless the parties stipulate otherwise, the tax effects of spousal support shall not be considered in determining the net disposable income of the parties for determining child support, but shall be considered in determining spousal support consistent with Chapter 3 (commencing with Section 4330) of Part 3.
(b) Deductions attributed to the employee’s contribution or the self-employed worker’s contribution pursuant to the Federal Insurance Contributions Act (FICA), or an amount not to exceed that allowed under FICA for persons not subject to FICA, provided that the deducted amount is used to secure retirement or disability benefits for the parent.
(c) Deductions for mandatory union dues and retirement benefits, provided that they are required as a condition of employment.
(d) Deductions for health insurance or health plan premiums for the parent and for any children the parent has an obligation to support and deductions for state disability insurance premiums.
(e) Any child or spousal support actually being paid by the parent pursuant to a court order, to or for the benefit of a person who is not a subject of the order to be established by the court. In the absence of a court order, child support actually being paid, not to exceed the amount established by the guideline, for natural or adopted children of the parent not residing in that parent’s home, who are not the subject of the order to be established by the court, and of whom the parent has a duty of support. Unless the parent proves payment of the support, a deduction shall not be allowed under this subdivision.
(f) Job-related expenses, if allowed by the court after consideration of whether the expenses are necessary, the benefit to the employee, and any other relevant facts.
(g) A deduction for hardship, as defined by Sections 4070 to 4073, inclusive, and applicable published appellate court decisions. The amount of the hardship shall not be deducted from the amount of child support, but shall be deducted from the income of the party to whom it applies. In applying any hardship under paragraph (2) of subdivision (a) of Section 4071, the court shall seek to provide equity between competing child support orders. The Judicial Council shall develop a formula for calculating the maximum hardship deduction and shall submit it to the Legislature for its consideration on or before July 1, 1995.
Contact David Weber at (310) 420-9495 to discuss the details of your particular child support dispute.