How to Avoid a Battle Over Child and Spousal Support
Let us show you how to avoid court and a support battle
Our divorce lawyers have seen a lot. However, one thing that continues to surprise us, and not in necessarily a good way, is how much of a fight spouses, ex-spouses and/or parents put up on simple child support and spousal support cases.
Our goal in this article is to provide some tips on how to resolve child support and spousal support in California divorce and parentage cases.
For divorces, the issues are often both child support and spousal support (also called alimony).
These two issues can cause disputes during the divorce and after judgment. In a parentage case, the issue is child support. Parentage cases are those where the mother and father have never been married to each other.
Let's get started!
How to avoid disagreements over child support?
Most of the time, a computer program calculates child support. The user inputs certain factors into the computer program. The computer program then provides the guideline child support number. There are numerous factors available for input. The most common are the following:
- The number of children.
- Parenting time percentage.
- The number of exemptions for each parent.
- Each parent's income, both taxable and nontaxable.
- Each parent's monthly health insurance deductions, specifically each parent's health plan premiums. This also includes the deduction for any children the parent(s) has an obligation to support. This reduces a parent's net disposable income.
- Mortgage interest and property tax deduction, which increases a parent's net disposable income. The new tax laws may have an impact on this.
- Childcare costs related to employment or education.
These are not the only factors. They are the most common factors inputted into the program.
Rarely should there be a dispute over child support if the following are true:
Beyond that, the rest of the more common factors I listed above are usually beyond reasonable dispute. That is because they are easy to prove.
How to resolve child support cases that do not involve complex factors
Let us assume the father and mother are W-2 employees and they share parenting time equally. What is there to fight about regarding child support? The answer is not much, if anything.
The parents can consult with an experienced family law attorney who will calculate the guideline number for child support. The parents, through the help of their attorneys, can then draft a stipulation and order that sets forth the monthly child support amount.
That stipulation and order will state the (a) child support commencement date, (b) will usually have standard language regarding its termination, and (c) have other mandatory child support provisions related to the following:
- Health insurance for the children,
- Payment of uninsured healthcare expenses,
- Payment of childcare expenses (although parents will sometimes leave this out for specific reasons), and related statutorily required provisions.
Knowledgeable family law attorneys have such additional provisions pre-drafted and ready as part of their templates. Judicial Council forms, which are preprinted forms, also have such provisions. For example, look at the judicial Council form titled FL - 342.
What if there are bonuses or commissions with an otherwise simple child support case?
Bonuses and commissions do not have to complicate a child support determination. If a parent receives income beyond his or her regular wages or salary, the parents can negotiate and agree to a child support order that includes payment of a percentage of that additional income as additional child support.
Please check out our article titled "Ostler-Smith" Additions to Child Support
What if one or both parents are self-employed?
Self-employment income can complicate a child support calculation if the self-employed parent is dishonest about his or her income or the non-self-employed parent incorrectly believes the other parent is dishonest.
Small businesses usually have simple accounting books. Some businesses have two sets of books when they are a cash-based business or otherwise have a significant cash related income not reported.
Most businesses can generate a profit and loss statement. They also have ledgers that set forth income received and the business expenses paid.
Many business owners have perquisites ("perks" for short) that may or may not be personal income but that they use to write off as a business expense.
Even if parents have a disagreement regarding the self-employment income, they can consult with an experienced family law attorney and a forensic accountant who can calculate the business income and that self-employed parent's income available for support purposes.
So long as the self-employed parent produces the relevant documents, it is rare a small or even mid-sized business will result in a complicated analysis of income available for child support purposes.
Check out our guide on Divorce Strategies for Self Employed Spouses
How to avoid disagreements over spousal support?
Most of what we wrote above applies to spousal support. Here are some of the dissimilarities.
The computer program does not apply to spousal support at the judgment phase
While temporary spousal support is usually based on the same computer software program that calculates child support, spousal support at the judgment phase should not rely on the computer program.
Spousal support determination at the judgment phase focuses on Family Code 4320, which sets forth the factors a court must take into consideration when it orders spousal support.
The computer software program is however helpful to attorneys especially with those of us who are able to modify some of the parameters to run a hypothetical that depend in part on the marital standard of living. It is beyond this article's scope to delve into such issues.
How do spouses determine the marital standard of living?
The marital standard of living and Family Code 4320 do not focus on the highest income or the lowest income of either spouse.
Instead, experience teaches that somewhere between three years to five years is a good indication of the family's average income and average expenses. Some cases may require a longer analysis.
Arguably, the more volatility that exists in the family income from one year to the next, the longer number of years a person can look to determine the average.
If a paying spouse's ability to pay spousal support is less than what the Family Code 4320 factors may require, then the court should order that lesser spousal support. Ability to pay is one of the Family Code 4320 factors.
While these issues can get complex and can therefore become contested, when dealing with W-2 employees whose income is transparent, determining the marital standard living and going through the Family Code 4320 factors should not be a heavily contested issue. Of course, if we are dealing with high income earners, regardless of their W-2 status, issues can become complex.
The more the family earned and spent during the marriage, the more complex the spousal support calculation becomes.
Reduction or termination of spousal support
Termination of spousal support also does not have to be a complex issue except in those cases where there is a significant dispute between the spouses on issues such as date of separation.
Short term marriages
In a short-term marriage, spousal support is generally one-half the duration of the marriage. However, some marriages are so close to the 10-year mark, that the court has the discretion to treat them as a long-term marriage. However, the marriage's duration and the proximity to the 10-year mark is not the only factor.
Marriages that hit the 10 year mark
Similarly, a marriage that is 10 years or longer is a long-term marriage. However, that does not mean just because the marriage hit the 10-year mark, the spousal support is a lifetime retirement contract for the lower earning spouse.
Very long marriages
What about a marriage of significant duration such as 20 or more years? The longer the marriage and especially with a disparity in income between the spouses, the more likely the spousal support order will be open-ended and will not have a termination date.
Spouses, with the help of experienced family law attorneys, should bridge any disputes they have on spousal support duration. For example, if the marriage is five years from the date of marriage to the date of separation and both spouses are healthy, that scenario usually ends with spousal support for 2 1/2 years.
Cohabitation often results in the supporting spouse to ask for a reduction or termination of spousal support. However, that does not have to result in a court battle. Assume the spouses are divorced and the cohabitation occurs post judgment.
Dialogue with the spouses can evaluate whether the spouse receiving support has a lesser need for that support.
Does the nonmarital partner who lives with the spouse provide for the supported spouse? How much? Is it enough to justify a reduction? What is the standard of living as a result of the cohabitation?
These are the initial questions and it goes from there.
Learn more about cohabitation by clicking the link to our guide titled Cohabitation and Alimony in California.
Be prepared to explain extreme positions
If the spouse who receives the support wants longer support, then he or she should be prepared to explain why such an order would be justified in light of the facts and the law. Simply taking a position for the sake of taking it is rarely reasonable.
Let us now take a 15-year marriage where there is a significant disparity between the spouse's respective incomes. That was consistent during the marriage. Now assume the person paying spousal support demands that spousal support end at the seven and one-half year mark. He or she should have a reasonable and factual explanation as to why the other spouse should agree to such a termination.
Do not represent yourself and hire a family law attorney
Spouses should not try to navigate these issues and especially in negotiations on their own. As we wrote before, an experienced and knowledgeable family law attorney's advice is critical.
We often see spouses who represent themselves and attempt mediation with a person not an attorney at all or who is not a family law attorney.
The spouses then sign agreements that become court orders. Unfortunately, they should not have signed these agreements and they should not have ever become court orders. Too often, it is too late. It does not have to be for you because you will not make the same mistake.
Ready to talk? We are ready to help. Contact us for an affordable strategy session and we will help you resolve your support issues.