Deviation from the California Child Support Guidelines

Deviation From The California Child Support Guideline Formula

California family law judges are not slaves to guideline child support. The Family Code gives them the ability to deviate if applying the child support guidelines formula is unjust or inappropriate. Here is what Family Code 4057 states about this subject. After each section, we will provide our input on it.

“(a) The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered."

The code states the guideline formula is presumed correction.

"(b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056:"

The presumption of correctness is not absolute. If the parent provides sufficient evidence that applying the guideline formula would be "unjust" or "inappropriate", the court may deviate from guideline child support.

"(1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065."

If the parents agree to a number, chances are pretty good the court will go along with it. That is not automatic however.

"(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."

This one is a unique situation. Parents must agree or the court must order the family residence sale to be deferred. The "section 3800" to which it refers is the Family Code section that deals with deferred sale.

That section allows the court to defer the home's sale to "minimize the adverse impact of dissolution of marriage or legal separation of the parties on the child." Usually in such a situation, the custodial parent lives at the home with the children and the non custodial, child support paying parent is contributing to the mortgage, property taxes, insurance, association dues, etc.

This makes sense for the non custodial parent if the children are greatly benefited by staying at the home and the amount he or she pays toward the home costs do not far exceed what guideline child support may be.

"(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."

If the paying parent has "extraordinarily high income", the court has the power to deviate from the compute formula. That is because the computer formula may generate a child support amount significantly higher than what a child actually needs.

But do not confuse this with the court limiting child support to "need." A child has the right to share in both parent's lifestyles and the fact one parent may be a high income earner should not cause the child to be deprived of the economic benefits that come with that higher income.

That is one reason the code adds the word "extraordinarily" before "high income." In Southern California, that generally does not mean an income in the hundreds of thousands of dollars per year or even in the low millions. Generally, this income is greater than 2 million per year. How much more depends on the court. The court has significant discretion in such circumstances.

"(4) A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time."

This one deals with a disparity in each parents' economic circumstances. The court can correct that disparity by adjusting child support.

"(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."

The court may adjust child support if there are multiple children and there are different parenting times for different children. While it is not common for a court to order different parenting time for different children, it does happen and especially when there is a large age gap between the 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."

Sometimes housing costs can swallow a significant portion of a parent's net disposable income. Similarly, a parent who lives rent or mortgage free has a much lower percentage of his or her income used for housing. The court can correct this disparity by adjusting child support.

"(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."

If the children have special needs or other needs that increase expenses related to their care, the court can adjust child support accordingly.

"(D) Cases in which a child is found to have more than two parents.”

If a child has more than two parents, child support between the parents may be allocated accordingly.

The above are not the only circumstances the court may deviate from guideline. Over the years, certain California cases have expanded the deviation ability. Keep reading to learn more.

Deviations Separate From the Family Code

Separate from the California Family Code, our appellate courts have also carved out certain situations where a trial court may deviate from guideline support. Some of these examples include the following:

1. The parent who pays child support has rent-free or mortgage free housing which allows the court to increase his or her child support due to a higher net disposable income even though the gross income may be lower.
2. The parent who pays child support has a lavish lifestyle that is based on that parent's assets and not income. This is usually reserved for extraordinary cases.
3. The parent who pays child support would have little to no funds available to live and pay for basic necessities of life after payment of child support. Courts in this situation have the power to order a downward deviation in support.
4. The parent who pays child support must pay travel expenses to see his or her child or children out-of-state. Of course, the amount of travel expenses make a difference here.
5. The parent who receives child support lives in a state with a lower cost of living. The logic here is California's guideline child support formula is really designed for California's cost-of-living.