CALIFORNIA CHILD SUPPORT LAWS
Your ultimate guide for California child support laws
What are the Laws on Child Support in California? A Guide to Calculation, Modification and More
What are the laws on child support in California? It’s a simple question but one that involves a comprehensive discussion for a proper answer. You’re in luck. The guide on California child support laws you are about to read lays out the most common issues, questions and answers about child support in our State. Before we begin, there are a few important things.
We wrote this for one reason – for fathers and mothers who have questions and need a place to start before they consult with an experienced attorney.
What we have written here is not legal advice nor is it a substitute for legal advice. Once you have read this, it’s time to get advice regarding your specific child support matter. We are selective about the cases we take on and only represent good people with the right intentions and who are serious about hiring quality representation for their California child support case.
We offer an affordable, initial strategy session where we discuss your specific child support facts and your questions. If our firm is a good fit for your needs and we believe we can help you, we will then give you a quote for that representation. To reach us at our central office, call (714) 937-1193 or you may complete the contact us form on this website
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CA Child Support Laws
The purpose and intent of California child support laws
If you are about to embark on a child support case, whether you are the one asking for support or believe you may face such a request against you, the time you invest in reading this may be very worth your while.
We will cite to California Family Code sections throughout this page. Sometimes we will quote them and you will know that because we use quotes but most often we just summarize the parts of the code section we are discussing at that time.
We cannot cover every child support topic on this page. No Guide really can. But what we can do and have done is give direction and a starting point for the most common issues and questions.
This California child support guide is comprehensive. If you came here expecting something that skips the details, you will be disappointed. If you came here thirsting for knowledge, you are in luck.
Also, please remember to share this page if you like what you read. Got friends or family who could use this information? The social media links at the top of the page allow you to share this page as you wish.
California Family Code 4053 lays out the answer pretty well. In summary (not word for word), here is what it teaches:
- A mother and father’s first and most important obligation is to support their child.
- That obligation is mutual, based on ability, each parent’s income and time with the child, all consistent with the child’s best interest.
- A child should share in the standard living of both parents.
- Child support may improve a custodial parent’s standard of living because that improves a child’s standard of living. That means child support also reduces the disparity of each parent’s standard of living.
- California is an expensive State to live in and child support orders reflect that.
- California law presumes the parent who has the primary parenting time already contributes a significant part of his or her resources for the child. This presumption can be rebutted.
- California’s child support guidelines are designed to reduce conflict and lessen litigation.
- What does all of this mean? It means the child’s best interest is California’s number one priority.
Do California child support laws really work in the way the legislature intended?
When the California legislature enacted and amended our child support laws, they intended to simplify the process. Did they inadvertently complicate it?
While California child support laws are designed to speed up and streamline the process, four issues often get in the way.
- Parents who frustrate or interfere with the other’s parent’s time with the children: This takes place in parental gatekeeping matters which can lead to parental alienation. A parent does this to artificially increase his or her own time and therefore increase child support.
- Parents who have little interest in spending quality time with their children but still seek parenting time they do not want or cannot handle: Why? To artificially decrease their child support exposure.
- Parents who refuse to become gainfully employed when they have the earning capacity, ability and opportunity: Remember, the obligation to support a child is a mutual one. It doesn’t just fall on the noncustodial parent. Unfortunately, most parents don’t realize this and think just because they are the higher income earner, all of the burden must fall on them.
- Parents who lie about their income, often claiming it is less than what it actually is, to pay less than what California child support laws require.
It is not coincidence there are specific laws to prevent and punish these things.
Our family law firm in Orange County, California has had success in obtaining great results for parents who have had to face such offenders.
Guideline California child support orders
From a practical perspective, guideline child support is what the computer program (Dissomaster and X-Spouse being the two most common in Southern California) tells the judge child support should be. That assumes the correct information is inputted into the program.
Does the Family Court have to follow California’s child support guideline?
Not in every case, but there has to be a proper, legal reason to deviate from it. California Courts cannot simply fail to order the guideline child support amount for reasons not permitted by law. That is because the guideline child support number is presumptively deemed to be correct.
This presumption of correctness can be rebutted up or down.
The Court needs to have admissible evidence that shows the guideline formula would be “unjust or inappropriate” in the case. What can the Court consider? We have listed it here.
By the way, the person who wants the Court to deviate from the guideline formula is the one who has to persuade the Court it should.
The list is:
- (1) “The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065.”
That is a fancy way of saying the parties agreed to a different amount.
- (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.”
Self explanatory and a unique situation.
- (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.”
At some point, California’s child support guideline becomes too much because the other parent’s income is so high that to use the computer formula would be far more than what the children need. Keep in mind though that children are to share in their parent’s lifestyle so don’t assume this section means that wealthy parents get a break on child support – far from it.
- (4) “A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time.”
The custodial parent is presumed to contribute the majority of his or her resources to the child right? What happens when that is wrong? The noncustodial parent has the burden of proof to show that.
- (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.”
This section may be the most common. It’s also the most broad and gives the Court the most discretion, especially about children with “special medical or other needs.”
The Court must state how it got to the point of deviating from the California child support guideline number
If the Court finds any of these factors apply and the Court intends to deviate from the California guideline support number, Family Code 4056 requires the Court to follow certain mandatory steps. The Family Court has to state:
(1) The amount of support that would have been ordered under the guideline formula.
(2) The reasons the amount of support ordered differs from the guideline formula amount.
(3) The reasons the amount of support ordered is consistent with the best interests of the children.
(b) At the request of any party, the Court shall state in writing or on the record the following information used in determining the guideline amount under this article:
(1) The net monthly disposable income of each parent.
(2) The actual federal income tax filing status of each parent (such as, single, married, married filing separately, or head of household and number of exemptions).
(3) Deductions from gross income for each parent.
(4) The approximate percentage of time pursuant to paragraph (1) of subdivision (b) of Section 4055 that each parent has primary physical responsibility for the children compared to the other parent.
Do California child support laws allow parents to agree to less or more than what the State Guideline require?
While child support arrears cannot be waived, parents can agree to less or more than what California guideline requires for child support. If it is less, Courts take a more critical eye toward the agreement before they approve it. If it is more, you guessed it, it is usually approved without a second look.
We talk about the issue of waiver a bit more later in this Guide.
Can a parent be ordered to provide security for payment of child support?
Yes. Sometimes, parents are required to provide security for payment of child support. This is not mandatory. The Family Court can determine whether it’s appropriate in a case and the amount ordered must be reasonable. There is a whole set of California Family Code sections that deal with this between Family Code 4560 through 4573. The duration of the order is “up to one year’s child support or such lesser amount as is equal to the child support amount due to be paid by the child support obligor between the time of the date of the order and the date when the support obligation will be terminated by operation of law.”
California Child Support Calculator
California child support calculation involves many factors
California’s child support guidelines are based on a computer formula. Fair? That depends which side of the calculation you are on.
The three most common and most important factors when calculating the California child support amount are:
- The number of children who are entitled to support.
- The amount of parenting time each parent has with the children.
- Each parent’s net disposable income although don’t let that confuse you because the computer program takes your gross income and determines the net monthly disposable for you. How does it do that? By making legal assumptions like your tax base. I realize you may be scratching your head on this but look at it this way – guideline child support is intended to simplify the process and that means the occasional shortcut.
The above are not the only factors. They are simply the ones that have the most impact on the child support number.
If there is more than one child, the child support program makes an allocation of the support such that the youngest child receives the full amount of support for one child and then it is a downward adjustment for each additional child. The allocation is not important for your purposes because the computer program figures it out for you. Parents can agree and the Court can order a different allocation between the children
Health Insurance Coverage
California child support laws mandate health insurance coverage for children, in addition to the base child support
Every child support order must have a provision about “medical support.” This is in addition to the guideline child support amount. Medical support is a Family Court’s order that one or both parents must provide the child with health insurance so long as that insurance is available at no cost or reasonable cost. Health insurance coverage includes medical, dental and vision. What is reasonable? Typically, group health insurance policies through employment are considered reasonable as are plans that don’t exceed five percent of the parent’s gross income.
The one bit of good news for parents paying health insurance is that it is a line item deduction on the child support guideline calculation. Therefore, it’s really both parents contributing toward it because it does lower the child support obligation by a permitted amount.
A paying parent can request he or she be excluded from providing health insurance and there are forms made available for that but Courts are not overly receptive to such claims because they want to see children insured.
California Family Code sections 3750 through 3753 are good reading on the subject of health insurance and child support.
California Child Support Add-Ons
Mandatory child support add-ons
The mandatory add-ons are the following:
Uninsured health care expenses
Uninsured health care costs are often a component of California child support orders. They can be ordered, divided 50/50 or any allocation the Court believes is reasonable and in the child’s best interest
Reasonable medical, dental, and vision related bills that are uninsured are typically ordered divided 50/50 or some other percentage. Not paying those is the same as not paying child support.
There is a presumption the amount paid toward the children’s uninsured health care are reasonable but that rule has an exception within Family Code 4063(e). Like just about every presumption in family law, it can be rebutted.
Uninsured health care costs are an area that can become heavily litigated. This is especially true when one parent claims the treatment was done without their consent or it was not reasonable or necessary. We represented a father in an alleged six figure uninsured health care cost claim against him and he prevailed with our skilled representation.
What about California child support orders and braces? Does that fall under uninsured medical expenses?
This is another issue that often comes up. Can one parent require the other to pay 50% or otherwise share in the cost of braces?
If the braces were recommended by a dental care professional, that helps. If the braces are also a necessity (as opposed to only cosmetic), that helps more. Is there a specific law that specifically says braces are or are not covered under uninsured dental expenses and therefore part of a child support order? Not directly but most parents know whether the braces really are a necessity, luxury or a combination of each so the specific facts typically control this situation.
Also keep in mind that uninsured health care costs are presumed reasonable so there is at least an argument to be made the parent disputing the necessity of the braces is the one that has the burden of proof.
Child care costs as an additional child support add-on
Family Code 4062(a)(1) states that child care related to employment or reasonably necessary education or training for employment skills must be added to the child support. This amount is generally divided 50/50 although the Court can order a different allocation.
Sometimes, this amount is paid directly to the other parent but it can also be paid directly to the child care provider. That may be best especially in situations where there is a reasonable question as to whether or not the parent asking for the payment is really incurring the expense. We see this in cases where a relative is the child care provider and claims a cost but that cost is really not being paid by the parenting claiming it.
Discretionary child support add-ons
Public versus private school
California child support laws give the court discretion to order private school costs to be paid
The Family Court may order private schooling costs(including tuition) but whether or not to do so is within the Court’s discretion. If a child has been attending private school, the chances of getting such an order are better than asking for a child to go from public to private.
Some children have special needs that require private or special schooling. That is more often granted. Of course, each parent’s ability to pay is a factor.
Child support add on for extracurricular activities
The Court also has the discretion to order payment for extracurricular activities. This also most often occurs when a child has been engaging in such activities. Ability to pay is again a factor.
The Court can order travel expenses paid for visitation. This sometimes occurs when a custodial parent has to travel a greater than normal distance to take the child to the noncustodial parent.
The more common scenario however is when the noncustodial parent is the one asking for reimbursement of travel expenses to come and see the child.
There is currently a conflict within the law on this issue so taking your specific situation to a family law attorney is important.
Do not confuse this scenario with one that involves a non-custodial parent who requests that the custodial parent share in travel expenses because the custodial parent moved with the child, even if with the Court’s permission. There is direct legal authority for such a request and whether it is ordered, how it is paid and for how much is in the Court’s discretion and dependent on the facts.
How Do You Start the Child Support Process?
Initial child support request
California child support actions often start with the filing of a divorce petition
Child support actions traditionally start one of two ways (although these are not the only way).
1. A divorce or paternity filing; or
2. A California Department of Child Support Services action through the local child support agency.
Child support actions that do not involve the Department of Child Support Services start with a request for order (used to be called order to show cause).
The request for order starts on a form numbered FL-300. There are other child support forms that are discretionary (you can use them or give the same information in a separate declaration). Attorneys sometimes use the forms and other times prefer to type them out in a formal declaration to lay out the basis for the request.
Income and Expense Declaration
Important role of the income and expense declaration
No matter the style, the basis for the child support request must be stated and a request must include an income and expense declaration, a critical part of the process. If the declaration is incomplete, it could have a serious impact on the child support request. For example,
If the parent that requests child support fails to complete it properly, that could delay the request or cause a denial.
- If the parent that opposes child support fails to complete the income and expense declaration properly, that could cause, among other things, monetary sanctions against that parent or assumptions made about his or her income the parent may not like.
Self represented parents often do not properly complete and income and expense declaration. The most common mistakes include the failure to complete every section or leaving out the income verification documents required by sections five (dealing with wages, salary, etc.) and section seven (dealing with a self employed parent). Failing to state the expenses properly and accurate is also common among self represented parents.
Serving the child support request for order
Once the child support request for order is filed, it has to be served on the other parent. The method of service depends on whether the parent has already been served with the divorce or paternity petition or not. The method of service can also vary depending on whether the other parent resides within California or not. We cover service in general terms within a featured article called “how to serve divorce papers in California.”
Deadline to respond to the child support request for order
Once service takes place, the other parent has a deadline by which to respond. That time is generally nine Court days before the hearing if the response is personally served on the other parent. Serving the response by mail or another way means an earlier filing and service (which means the responding parent has to move even faster to file and serve the response).
Don’t confuse this with responding to a summons and petition. A whole different set of timelines apply there.
Nine Court days does not leave a lot of time because Court days means you skip weekends and holidays. Thus, a parent served with a child support request for order has to move quickly and hire an experienced child support lawyer to prepare the response and appear at the hearing.
Child support hearing
Please don’t represent yourself for your child support hearing. California child support laws and procedure can get complex and you need quality legal representation.
At the child support hearing, the Family Court will review each parent’s submitted paperwork, listen to testimony under oath and decide. If there are issues and disputes regarding parenting time, income, imputation of income or other appropriate disputes regarding child support that are factually or legally supported, the Family Court will hear those and make a ruling.
Whatever the Court’s ruling, it will typically be memorialized verbally and on the record.
With self represented parents, the Court may document its ruling with something called a “minute order” which is another way of saying the Court clerk takes down the Family Court’s child support ruling in a typewritten format, on the computer. That minute order then becomes part of the Court record.
No matter what the Court’s ruling, a list of the factors the Court considered when arriving at the California child support guideline number must be listed.
Family Court judges will typically do that by either accepting either lawyer’s computer printout that lists these factors or the Court will run its own number with the same or similar computer program and print it out.
Retroactivity and How Far Back Does Child Support Go?
What does retroactive child support mean? It means the child support order isn’t just a prospective one (from a present or future date, going forward) but a retroactive one (going backward to start at a previous date). In other words, “retroactive” child support means child support that starts on a past date.
Here is how the retroactive child support works and the rules about it.
The first child support order is typically, though not always, the temporary one. It is the order before a judgment. That first, temporary order can be made retroactive to the date the petition (or whatever other initial document is filed). Does it have to be? No. But the Court may order that it starts at that past date.
The petition is typically what starts a divorce or paternity action. That means the start date of the first California child support order can go back to the date that was filed even though the Court hearing is after that. There are exceptions to this.
- Illustration: A petition for divorce is filed on February 1. It is then served. A request for order for child support is then filed on March 1. The hearing is on April 15. On April 15, the Court makes its child support order and may make it retroactive to February 1 or March 1.
We are not going to discuss ex parte (emergency) child support orders here. Those are covered by Family Code 3620 through 3634
One exception is when that initial petition (or other document that started the process) wasn’t served on the other parent within 90 days of its filing. In such a situation, the retroactive start date is the date it was served. Guess what? There is an exception to the exception and you may have already figured it out – this exception does not apply per Family Code 4009. Pay attention to the bold part.
Family Code 4009: An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service.
Sometimes, the Family Court will reserve retroactivity when it makes a child support order. That will be discussed in a future article.
Modification of California Child Support Orders
We’ve been talking about the initial child support order. What about a modification of it?
California child support laws allow such modified orders to go back to the date the modification request for order was filed. California law doesn’t distinguish between who filed the modification request or whether it was to increase or decrease child support. Once again though, there are exceptions. We won’t cover all of them here (these issues can get complex and the advice of an experienced child support lawyer is needed) but Family Code 3653 (b) through (d) carve out some of them.
Subsection (b) states that a modification request based on unemployment can be made retroactive to the “later of the date of the service on the opposing party…to modify or terminate or the date of unemployment.” This is subject to certain Federal Law and also the court finding good cause to do otherwise.
Subsection (c) deals with a change in income due to activation to the United States military service or National Guard duty and deployment out-of-state. In such a situation, the child support order must be made retroactive “to the later of the date of the service on the opposing party of the notice of activation, notice of motion, order to show cause to modify or terminate, or the date of activation, subject to the notice requirements of federal law (42 U.S.C. Sec. 666(a)(9))…” Once again, the Family Court may find good cause to do otherwise.
Subsection (d) also allows the Family Court to order the child support payee to reimburse the payor for any support paid in excess of the retroactive amount. The Court has a lot of discretion on how to order this.
There are situations where the parents can ask or the Court can order to “reserve” retroactivity even after it makes an order. We will discuss that in a future article.
The role “change of circumstances” plays in modification of a California child support order
After a family law judge makes a child support order, one or both parents (or the Department of Child Support Services if they are involved) may want to change the order. So long as the order was at the guideline amount or above it, the parent who seeks the modification needs to show a “change in circumstances” since the last child support order was made.
If the judge ordered (nearly always by agreement of both parents) a child support amount below the guideline amount, a parent can ask to change that amount at any time. The parent does not need to show a change in circumstances.
What is a change of circumstances? There are plenty of proper reasons to seek a modification based on a change of circumstances and the following lists the most common ones (though not every one) our lawyers have seen:
- The parenting time has changed: This typically happens when one parent’s time goes up or down, whether by agreement or a contested child custody hearing and order.
- Either parent’s income situation has changed: income has gone up, down or one parent has become unemployed.
- A parent has had another child from another relationship.
- Changes have been made to the child’s needs or expenses: The most common ones are child care, medical or other health related costs, a special need has developed (including a medical diagnosis), etc.
A change in just about any of the factors that go into the child support calculation may be the basis but be careful – if the change is not a significant one, filing a modification request may be a waste of time. For example, if the change in income or parenting time is very small, it may not have much, if any, impact. How do you know if you are the one who wants to bring a child support modification request or are facing one? Simple. Get good legal advice. Trying to figure these types of things out on your own is usually not wise.
Parents who wait to file that child support modification may regret it
Waiting to file a child support modification request when you are entitled to one can cause serious, negative financial consequences. Don’t fall into the procrastination trap.
If you are the parent who wants a modification of child support (especially a downward one), waiting is one of the worst things you can do. Until there is a new order, the last order remains in effect and, as we discussed, the Court usually cannot go back before your modification request was filed and served. That means you are stuck with the order until you change it, absent limited exceptions (we will talk about these exceptions in a future article).
Verbal agreements may not help you and are often not considered after a modification request is filed. Until you get a Court order, it is safest to assume you are not protected.
Why would anyone wait to modify child support if they can show a change of circumstance? In our opinion there is rarely, if ever, a good reason but here are some bad ones we have heard and seen people use:
- Life gets in the way – we know, it happens. Work, family, providing for yourself and others hardly leaves time to think about starting a Court proceeding.
- Fear or anxiety – to some people, going back to Family Court (especially if the previous experiences were not good ones) is the last thing they want. It’s “easier” to do nothing.
- For those who seek a downward modification due to a change in parenting time, you are concerned if you file the request, the other parent will start keeping the children from you. Fathers go through this all the time. They worry about “rocking the boat” so they keep paying the higher child support even if they have close to equal, equal or even primary parenting time. The parent receiving support also does this for fear of “upsetting” the paying parent.
- A job loss can turn a parent’s financial life upside down. The unemployed parent may think it is temporary so the parent waits days, then weeks, and that turns into months and all the while, that parent cannot afford to pay his or her own expenses.
These are four of many we have heard. None of them are good ones, although all of them are understandable from an emotional perspective. But your emotions are not what should control your decisions. Your intelligence and common sense should.
Be careful waiting to file that child support modification. The advice of an attorney is critical during this time period to know when to file and how to do it.
How is child support in California modified if there is a change of circumstances?
Child support modifications come into play in two instances. Modification of temporary orders or modification of judgments that ordered child support.
Modifications are identical in almost every respect to an initial request. They involve the same forms although a parent does have to make it clear to the family law Court he or she seeks a modification. Typically, the Court order to be modified is attached or at least referenced.
Other than that, the same factors that went into the last order, go into the child support modification request. The major difference a parent may find is that he or she has to show a change of circumstances from the time of the last order. Child support modifications are not there to simply revisit the last order because a parent was unhappy with it. That would cause chaos in the Court system.
As we have discussed, the main exception we have seen is modification of child support orders that were below California guideline. Remember that for those, no change of circumstances is required. Other exceptions are beyond the scope of this Child Support Guide.
A few words about appealing California child support orders
Did the judge make the wrong legal ruling or fail to consider important facts? An appeal may be a smart option.
But what if the judge got it wrong? What do you do then? There are several methods by which you can challenge the Family Court’s child support order.
That is beyond the scope of this guide but some of them include a motion for reconsideration which has strict and quick timelines associated with it as well as an appeal.
I’m sure you’ve heard of an appeal and the ability to take to a higher Court a decision by a trial Court judge. Those also have filing deadlines and speaking with a family law appellate attorney immediately is a must (you may contact us for referrals).
You may also be under the belief that appeals always lose and there’s no sense to bring one even if the family law judge completely got the decision wrong based on the facts, the law or both.
Certainly a cost versus benefit analysis has to be done on any appeal but do you really think the many California appellate cases over the years and decades would’ve come down remanding or reversing a Family Court’s child support order if there was no hope?
How is Income Determined for Child Support Purposes?
We got some good reading for you. We have written an article called what is considered income for child support purposes? Check it out.
The role of tax returns when determining income for California child support purposes
Tax returns are presumed to be correct evidence of a parent’s gross income. That presumption is often rebutted in Family Court because parents do fail to report (or do under report) their income. In such situations, evidence that demonstrates the information on the tax returns is not reliable is something the Court does consider and, in our experience, readily does so.
Lying about income is less frequent with a wage earner (Form W2 verified) employee. We have seen not reporting or underreporting of income most often with self-employed parents and not just in cash businesses. A very good example of what could happen in such situations is the appellate case of Marriage of Barth from 2012, which was an Orange County family law case handled by Judge James Waltz.
What does a Court rely on in such circumstances? There are lot of options available. Some are:
- Profit and loss statements of the business, ledgers, bank and credit card statements that may show personal expenses being written off as business ones.
- Loan applications like those for a mortgage, rent, vehicle, equipment, etc.
- The amount of monthly expenses spent…as we say, only the Federal Government can spend more money than it brings in.
Those are just a few examples. There is more, much more, but that would be Guide by itself.
What are the consequences of lying to the Court about income? How much time do you have because it’s plenty.
First, if the person has willfully given false testimony (and that includes providing false information on the income and expense declaration), then that may be a felony in the State of California. Perjury can be reported and prosecuted. In addition, the Court could make very unfavorable presumptions about the income and it could backfire to such an extent the Family Court designates an income that is actually higher than what the person earns, even if they had told the truth from the outset. In short, losing credibility can blow up in the face of the person that lost it.
The Court also has the power to order sanctions and attorney fees. In some cases, especially if there is a lack of cooperation in the “discovery” process or other circumstances, the Court can order issue, evidentiary or terminating sanctions. That is beyond the scope of this Guide and we will save that for another day.
Child support for or against a self-employed father or mother
We have written a nice featured guide on divorce strategy for self employed spouses. Give it a read if you are self employed and are facing support issues.
What if a father or mother refuses to work or is underemployed?
This issues comes up a lot. Typically, it goes something like this – Parent A is facing a child support order. Parent B doesn’t work. Parent A tells the Court that Parent B is capable of working and refuses. What does the Court do?
The Family Court can consider a parent’s earning capacity in the place of income if that parent is unemployed or underemployed. Family Code 4058(b) specifically states “the Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”
California child support law breaks earning capacity into two parts – the ability to earn an income and the opportunity to do so. Ability means the parent can actually work and doesn’t suffer from, as one example, disabilities that prevent the parent from working. Opportunity means there are jobs out there to be had. Makes sense right?
There is actually one more factor. The earning capacity imputation of income must also be consistent with the children’s best interest. That last part may seem like a no-brainer but there are situations where a parent has special needs children (or an infant) that make it difficult to work full-time and working full-time (or part-time) would be inconsistent with the children’s best interest.
If a parent can show the other has both the ability and opportunity, that imputed income would then replace the actual earned income if the parent is working (but underemployed) or simply become the parents’ imputed earned income.
This is not a fault-based statute. Courts usually don’t get into why a parent is not working. What Courts care about is just what we have written – earning capacity through ability and opportunity.
The genesis for all of these laws comes down to one thing – California child support laws are very clear that both parents have the duty to support their children and that duty cannot be placed unreasonably on only one parent.
Can a parent’s assets be considered for child support calculation?
Sometimes, a California family law judge can consider assets and investments for child support purposes
It’s a unique situation but the short answer is – sometimes. A parent’s assets that are underinvested or not utilized properly give the Court discretion to consider the rate of return (in other words, “interest”) that should be earned on that money.
Of course, the question that has to be asked in today’s world is what a reasonable rate of return may be? Banks are giving very little interest and the market can get volatile. CDs are not what they used to be. You can certainly invest your money in the stock market, and many do, but is it really fair for a Family Law Judge to tell you whether your risk tolerance is too low?
That’s why there are no hard and fast rules about these situations and every factual case will be judged on its own merit. Ultimately, it takes persuasive evidence to take liquid assets and investments and make a case that it is underinvested or there should be a greater rate of return on it.
Special Issues in Child Support Cases
Role of new spouse income on California child support
The moment an attorney or judge brings up the subject of the new spouse’s income and its role in California child support, one parent will cry fair and the other parent will cry foul, depending on which parent has the new spouse and the respective income. Here is a common scenario.
Let’s say the father pays $2,000.00 per month in child support to the mother. The mother is the custodial parent. The father gets remarried and his new wife makes a decent income. The father’s standard of living just went up, right? The mother now claims his new spouse’s income should be considered for child support. The father claims that would be unfair – after all, it’s not her biological child.
Both parents have it wrong.
The new spouse’s income is relevant for determining the tax liability of that parent so the guideline formula will be correct. This assumes of course the parent and his or her new spouse file a joint tax return.
Take the same hypothetical but add more detail. Let’s say the father makes $100,000.00 per year and his new spouse makes $200,000.00 per year. At $100,000.00 per year, the father was in a lower tax bracket than at $300,000.00 joint income with his new spouse. That means more money is deducted from their combined pay. That new tax bracket is what the California child support guideline formula cares about. Do you know what happens next? The father’s child support likely goes down because he has less net disposable income from his $100,000.00 – he is in a combined higher tax bracket. The new spouse’s income therefore has an indirect impact on child support.
Can the new spouse’s income be used for other purposes, to directly raise or lower support? Remember, that is different from the scenario we talked about. The Family Code doesn’t allow that absent certain “extraordinary circumstances.” Family Code 4057.5 is an interesting statute. To meet its burden is not easy but it’s clear that it was born from pretty unique situations that are designed to avoid extreme hardship situations.
Here is what section 4057.5 states, in summary (not verbatim):
- The new spouse income of the payor can’t be used unless it’s an extraordinary case where keeping that income out would cause “extreme and severe hardship” to the child for whom support is paid. But the Court also has to consider whether including the new spouse income would case that same hardship to a child that is supported by the payor or the new spouse.
- The same rule applies about the new spouse income of the parent receiving support – same hardship to the child being supported but also the payee or new spouse’s other child.
- The statute cites as one extraordinary case a situation where a parent voluntary and intentionally quits, remains unemployed, underemployed or reduces his or her income and relies on the new spouse’s income. See what the law is doing? Just because a parent marries into money with a new spouse doesn’t mean his or her child suffers.
The rules are strict with how the new spouse’s income is determined and there are hardship deductions given. These are complex issues. Even the date this statute went into effect complicates it further. As we have said throughout this California Child Support Guide, the advice of an experienced attorney about your specific factual situation is important.
What is deducted from gross income for California child support purposes?
Figuring out gross income isn’t the end of the California child support process. Next come certain deductions.
Let’s look at Family Code 4059 and take it in order. This isn’t a word for word account of this code section. The details are in the code. Deducted from gross income are:
1. State and federal income taxes. But what happens in a situation where a parent is not paying his or her taxes? One appellate case has stated that a parent who does not pay income taxes does not get a deduction. Makes sense right? Shouldn’t deduct what isn’t actual being paid.
What about spousal support? Does that get deducted? The short answer is no. The fact that a spouse is paying spousal support to the spouse who receives child support is not a proper deduction. However, the reverse gets you a different answer. When calculating spousal support in California, the child support being paid to the same parent has to be considered. That means if a spouse has been ordered to pay spousal support and then later ordered to pay child support to the same parent, that paying spouse may be due for a spousal support modification.
2. Contributions under the Federal Insurance Contributions Act, also known as FICA.
3. Mandatory union dues or retirement deductions.
4. Health insurance or health plan premium deductions for the parent and any children that parent has the obligation to support: This also includes deductions for state disability insurance premiums.
5. Child support or spousal support paid under a Court order to a different spouse or child: Does that mean only Court ordered support payments are deducted? No but it gets tricky here. The Court can still allow the deduction for un-ordered support so long as the amount being paid is consistent with California guideline (it doesn’t exceed it) and the child does not live in the home of the parent paying the support. Gamesmanship is common in these situations so careful attention must be paid as to whether the child support is or is not really being paid, for legitimate reasons and how.
6. Family Code 4059(f) allows for deduction of “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.”
7. The often confused hardship deduction that Family Code sections 4070 through 4073 lay out: Hardship deductions include (a) extraordinary health care expenses for which the paying parent is financially responsible, (b) catastrophic losses that are uninsured, and (c) basic, minimum living expenses of the parent’s natural or adopted children from another relationship or marriage who reside with the parents and who the parent has an obligation to support. The rules regarding stepchildren get more complex.
Just because one of these apply does not mean the Court has to give a hardship deduction. The Family Court is required to look at the circumstances of each case and whether a Court gives a hardship deduction or not can turn on the facts and the Court’s discretion.
Is a hardship deduction dollar for dollar? Not necessarily. The Court has discretion here too and, no matter the amount of the hardship deduction, Family Code 4072 requires the Court to document the basis for the deduction.
How are Child Support Payments Made?
Direct payment to a parent
Child support payments are typically made directly by the payor to the payee. Most child support orders read that the payor will pay the payee a certain sum in child support commencing on a specific date and paid 1/2 on the first and 1/2 on the fifteenth of each month. After that, the order states the statutory language of its future termination.
Dealing with California child support agencies and Department of Child Support Services
Here is an article we wrote on this subject, specifically the Orange County’s Department of Child Support Services.
Arrears, Interest and Enforcement
Child Support Arrears, Interest and Enforcement
We won’t be covering this topic in detail because this Child Support Guide is more focused on requesting or responding to child support requests and not about collection. There are a couple of important things though that you should know.
Do California child support laws add interest to unpaid support?
Yes. The law is pretty simple. Child support arrears accrue interest at the statutory rate of 10% per year.
Do California child support laws allow child support to be waived?
Parents cannot take away the Court’s power (called jurisdiction) to order either of them to pay child support. California’s laws are so strict that parents cannot even waive or limit a child’s right to child support. What do we mean by limit or waive? Here is one example – let’s say a parent fails to make child support payments. This could be for a variety of reasons. Whatever the reason, the mother and father get together and sign an agreement that waives the child support previously owed and unpaid. Is that agreement enforceable? Generally no. Child support arrears cannot be waived nor can the Court modify the child support arrears that have already accrued.
There are exceptions and they are based on unique circumstances which we will cover in future articles. There are also situations where the Court can decide not to enforce a child support order due to the custodial parent’s misconduct. That will also be the subject of a future article.
Can a parent who doesn’t pay child support be held in contempt of the court’s order?
Yes and we have covered contempt in detail in the following – Contempt of court in California divorce and family law.
Child Support Laws Frequently Asked Questions
What is the relationship between California child support laws and parenting time?
California child support laws place a direct correlation between parenting time (called “visitation”, a term for which I never really cared) and child support. This a double-edged sword.
On the one hand, a parent who has more time with the child will have a greater need for child support. That is the theory behind it. On the other, the moment you connect parenting time and child support, you give parents with poor motives to use custody and parenting time as leverage in child support.
At what age do California child support payments stop?
Child support terminates when a child turns 18 years old except when the 18-year-old child is still a full-time high school student and lives with a parent. In that situation, child support terminates when the child turns 19 or graduates from high school, whichever occurs first. California child support also terminates if a child marries, joins the military, is emancipated or dies.
Parents can also agree to support for an adult child beyond that although that is unique.
California Child Support Laws About Bonuses, Overtime and Commissions
Annual gross income generally does include overtime, commissions and bonuses. That’s because the IRS typically considers those things income and California’s definition of income is pretty much in-line with that of the Federal Government.
The situations that often come up are below:
Another approach the Court can take is order a percentage of the future overtime or bonus instead of factoring that income into the monthly guideline support order. That may actually work well for both parents because the paying spouse doesn’t pay a monthly support order that is higher than what he or she can afford on a month to month basis, but the parent receiving support still gets guideline support when averaged out over a year. This percentage would not be set at one number or percentage. It would change depending on the amount of the overtime, bonus, etc. This approach is sometimes called an “Ostler-Smith”, which is named after a California case.
What does all of this tell you? The Court has discretion on such issues and every case is driven by its own facts.
Question: What happens if the bonus or overtime is sporadic?
It doesn’t matter. Since income is often based on the “average”, Courts will look at one or more years to figure out what that average is. This isn’t a draconian process. The goal is to determine the present from a consistent (even if a sporadic) past.
What happens if the past bonus, overtime or commissions are likely not going to continue?
If the spouse that is employed can show that, the Family Court can exclude its consideration of these items. But this isn’t always easy. The employee’s testimony may not be enough. Family Courts hear pretty regularly from the higher earning spouse that his or her income is going down, won’t be the same as before, etc. so judges will naturally want some proof of that.
What happens when the employed spouse claims he or she voluntarily won’t work overtime?
hat is fine of course but there should be a reason for it and “because I wanted to” may not work too well. At the same time, Courts are aware that, during a relationship or marriage, one spouse may work a lot of hours that are not sustainable after separation, especially when custody, parenting time and taking care of the kids without the other parent come into play.
We hope you enjoyed this comprehensive guide on California child support
We hope you enjoyed this guide. We have written several others for those looking for general information on California family law. Please check out our guides listed below and remember that a guide is not designed to provide you with legal advice or information about your specific case. Legal advice comes from having a private consultation with an attorney, preferably one who is experienced in divorce and family law.