In California, both parents owe a duty to support their children. This obligation usually manifests itself in a cash payment to the payee from the payor and is primarily based upon each parent's income and the time each parent has with the child(ren). The amount of child support must be consistent with the child(ren)'s best interest.
Under California law, public policy states that a child should share in the standard living of both parents, and because California is an expensive state to live in, child support orders reflect that in terms of being quite high compared to other states. Further, child support may improve a recipient parent's standard of living because that improves a child's standard of living. This means that child support may also reduce the disparity of each parent's standard of living. While on the surface this may seem unfair to the payor, or appear to give the payee a windfall, the logic behind these orders is sound, which is to ensure that the child feels equally supported in both parents' homes and does not become resentful of one parent simply because that parent is unable to provide the lifestyle and means that the other can. In other words, the legislature seeks to ensure a child loves and respects both parents and is not influenced to estrangement simply because one parent lacks financial means.
Child support orders are enforceable where ever the child lives. That means that a support order made out of state can be enforceable in any other state where the payor or the child reside, if those states are different from the state in which the order was made. Further, a state with enforcement power also has the power to modify a support order. So that means if your child moves to California, it is highly likely that the support order may increase if the original order was made in a state with lower guideline amounts.
We have attempted to answer some more common questions below, but this information should not be considered legal advice. We recommend that you schedule a consultation with a Murphy Family Law to discuss your child support case.
How much child support will I have to pay?
In setting child support, a court shall adhere to the statewide uniform guidelines in setting an amount of child support and may depart from the guideline only in special circumstances. Guideline child support is a function of several factors, including but not limited to the timeshare each parent has with the child(ren), and the income of each party. The calculation also takes into consideration mandatory deductions including expenses such as health insurance, union dues, mandatory retirement contributions, and any hardships a parent may have such as children from another relationship.
How does a court figure out guideline support?
Courts routinely use computer software programs to assist in calculating guideline child support (such as XSpouse or DissoMaster) by inputting data metrics into the program to calculate the guideline support amount. However, if your case involves the Department of Child Support Services (DCSS), the Court and parties must use the Department of Child Support Services' California Guideline Child Support Calculator software program. It is an Internet-based software program located on the DCSS website (www.childsupport.ca.gov). While use of this online calculator can help you estimate an child support in your case, the data metrics are complicated and we recommend you seek the advice of an attorney trained in utilizing support program.
What does the court consider as income?
For purposes of child support, income available for support is broadly defined by courts and includes:
- W-2 wages and your earnings from work;
- Self-employment income from your business including owner draws, retained earnings in business capital accounts, pass through income, expenses your business pays for on your behalf such as your cell phone, car expenses, meals, etc.;
- Income in-kind, such as free housing, the value of any living expenses another pays on your behalf;
- Pension and retirement income including social security retirement;
- Disability income including SSDI payments and private disability insurance payments;
- Rental or other income from assets;
- Dividends, interest, and trust income;
- Worker's compensation benefits;
- Unemployment benefits;
- Spousal support payments;
- Employee benefits that decrease living expenses;
- Nontaxable military food/housing allowances;
- Employee stock options;
- Possibly gambling or lottery wins.
This list is not exhaustive and a court has broad discretion to decide what constitutes income.
What does NOT count as income for purposes of child support?
- Supplemental Security Income (SSI);
- Child support received for another child;
- Any public assistance (TANF, food stamps, etc.);
- Student Loan proceeds;
- Spousal support received from the party paying support;
- Unallocated lump-sum personal injury damages;
- One-time gifts/inheritance.
What is imputation of income or earning capacity?
If a parent is under employed or not employed, the court has the discretion to impute (i.e. attribute income to a parent s/he is not actually earning) income to that parent commensurate with that parent's ability to earn based his or her education, qualifications, training, and skills. A court can also impute income to a parent if he or she owns an asset that could be earning income (e.g. a parent owns an extra home but chooses not rent it out). A court must consider the best interests of the child(ren) in imputing earning capacity in child support cases.
Does the other parent have to pay for child care or extracurricular activities?
A court must order the payment of child care for employment or education, and uninsured health care costs. A court may order additional amounts to pay for educational or other special needs expenses, or visitation travel expenses. No other add-ons are authorized by statute.
What are the consequences if I don't pay child support?
The consequences are significant and can be financially debilitating if you fail to pay court ordered child support. At a minimum, support arrears are subject to statutory interest (currently at 10% per year). You can also lose your driver's license, professional licenses, U.S. passport, garnishment of your wages, levies against your home and assets, and state and federal prosecution including fines and imprisonment.
Do I still have to pay child support if the children are living with me?
If children for whom you pay child support are now living with you full time, you are still under order to pay support until a court enters an order stating otherwise. You could be amassing support arrears you may have to repay. However, in some circumstances if you may be able to reduce your arrears under an exception called “Jackson credits.” This is a highly nuanced area of law and you should consult with a knowledgeable attorney to discuss your options if you find yourself in this circumstance.
What special circumstances exist to allow a court to deviate from guideline support calculations?
- The parties have stipulated to an amount other than guideline;
- If the Court has ordered the deferred sale of a home in which the children live and the fair market rental value of the home exceeds the mortgage cost;
- The payor has extraordinarily high income;
- Where a parent is not contributing to the children's needs at a level commensurate with his or her “custodial time.”
- “application of the formula would be unjust or inappropriate due to special circumstances in the particular case” (Family Code 4057(b).) This catch all provision is very broad, and encompasses factors as significant assets, free housing, voluntarily not working, nothing to live on after child support, and other special factors.
What if I or the other parent remarried? Does that impact child support?
Generally, no – a new mate is not obligated to utilize his or her income to pay towards the support of your child. Only in circumstances where there is extreme or severe hardship to a child can a court consider the income of a new marital partner. This circumstance is extraordinarily difficult to establish and applied in only the rarest of circumstances.
What impact does derivative Social Security benefits have on that disabled parent's child support obligation?
When a parent receives Social Security disability benefits, there is often a derivative cash benefit that is also paid for the benefit of any minor children. If the disabled parent is also the payor of child support, these derivative benefits can be paid directly to the payee parent. The amount of the derivative Social Security benefits is then credited toward the payor's child support obligation. In other words, the court will typically give dollar for dollar reduction against the disabled parent's child support obligation to the payee parent for the entire amount of the derivative Social Security benefits.
In order for the payee parent to directly receive the derivative Social Security, the payee/custodial parent applies for the derivative Social Security benefits directly through the Social Security administration. It is the obligation of the disabled parent to notify the payee parent of the availability of derivative benefits in order to obtain credit against the disabled parent's child support obligation. If the custodial parent refuses to apply or fails to cooperate, the amount of monthly derivative Social Security benefits he or she would have received is still credited toward the noncustodial and disabled parent's monthly child support obligation.
Murphy Family Law can help you with:
- Ensuring that your children get the financial support they need.
- Ensuring that your income and financial obligations are correctly and completely reported to the court.
- Modifying child support where there has been a change of financial circumstances.
- Enforcing child support orders if the the other parent has not made required payments.
- Assisting parents with interstate child support enforcement and modification under the Uniform Interstate Family Support Act (UIFSA).
- Representing parents who have gotten behind in child support (arrears) in actions by government child support services agencies.
- Establishing paternity, or lack of paternity, for child support and custody hearings.
Contact us today to schedule a consultation.