In compliance with Federal requirements, California has established a child support guideline formula that is “presumptively” (but rebuttably) correct. California has codified its guideline in Family Code sections 4050–4076. California Family Code section 4053 sets forth specifically the principles that the court should adhere to in implementing the statewide uniform guideline. The statue imposes a duty on both parents, whether married or not, to “support his or her minor children according to the parent’s circumstances and station in life.” (Family Code Section 4053(a).) The guideline also takes into consideration the level of income of each parent and the level of responsibility for the children, commonly referred to as “timeshare.” As a result, how much one parent has to pay to the other parent is primarily a product of each parents’ gross income (meaning before taxes) and how much time the child(ren) spend with each parent. It is not simply what the parties feel is “reasonable”. For those that are mathematically inclined, Family Code Section 4055 provides the formula used for calculating support. However, don’t expect the Judge (or any lawyer) to do the long hand calculation. All Judges and attorneys rely on specialized software to calculate child support and account for all appropriate deductions and other various factors.
Thus, if you are the higher earning parent, you can expect to have a duty to pay child support to the other parent. Conversely, if you are the lower earning parent, you can expect to receive child support on behalf of your child(ren.)
Generally, the answer is yes, in most cases. However, as with most things in life, there are always exceptions to the rule, child support being no different. However, it’s important to understand that the right to receive child support belongs to the child, not the receiving parent. Therefore, while parents can agree to an amount of child support different that the guideline amounts, they must usually have a sound reason to do so. A judge has to approve every stipulated child support agreement. However, so long as the agreement is in the best interests of the child(ren), it will be approved and upheld. While an agreement between the parents is the most common occurence when the California Guideline Formula would not be applied, it is the only time. California Family Code Section 4057 provides some general exceptions that would permit the Court to deviate from the application of guideline child support.
As mentioned earlier, the guideline child support amount is presumptively correct, however, it can be rebutted if one of the grounds provided for in Family Code Section 4057 is present. One of the instances in which the guideline child support amount can be rebutted is when the payor is found to be an extraordinarily high-income earner. What qualifies someone as an extraordinarily high-income earner? Unfortunately, California has no bright line rule of what would qualify someone has an extraordinarily high-income earner, and it varies depending on the county in which you reside. As such, judges have wide discretion in determining who is or is not an extraordinarily high-income earner. Once the court determines a parent is an extraordinarily high-income earner, the court may deviate from the guideline child support amount. However, the burden is on the parent seeking to deviate from the guideline amount because the amount exceeds the child(ren)’s reasonable needs.
Clemens | Warren, L.L.P. has invaluable experience in representing extraordinarily high-income earners and has successfully tried cases in this area – succeeding in rebutting the presumptively correct formula on behalf of its clients.
Family Code Section 3901 provides that child support in California ends at the age of 18, except when the child is a full-time high school student and continues to live with a parent. Child support will continue until the child graduates from high school, but not past the age of 19, unless the child has special needs. Of course, parents can always choose to support their children voluntarily beyond the age of 18 and well into college. Additionally, in the unique case involving a disabled child, it is possible that child support can continue beyond the age of 18.
In addition to the regular monthly child support amount, California law provides for what are known as “Mandatory Add-On’s” and “Discretionary Add-On’s.” As the name indicates, mandatory add-on’s are those which the Court must order when requested. Family Code Section 4062(a) provides the categories that constitute a mandatory add-on, which include un-reimbursed medical expenses, childcare expenses necessary for employment or training. Family Code Section 4062(b) provides the discretionary categories, which includes costs related to the education or the special needs of a child; as well as travel expenses for visitation with the children. Keep in mind, both mandatory and discretionary add-on’s are in addition to the regular child support order.
California recognizes two types of spousal support, interim or temporary spousal support and permanent spousal support. California utilizes the term “spousal support” but it is indeed the same as “alimony.”
Temporary spousal support is support that may be awarded during the pendency of the divorce proceedings. The purpose of temporary or interim support is maintain the status quo with the goal that each party continue to live at or as near to the marital standard of living as they did prior to the commencement of the divorce.
Temporary spousal support is often determined by the same California guideline formula that is used to determine child support. The court will utilize each parties’ gross income and also consider other debts and obligations.
On the other hand, permanent spousal support, i.e., at the time of trial or Judgment, the Court is required to consider the factors delineated in Family Code Section 4320. Family Code Section 4320 states:
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a reasonable period of time for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
California distinguishes between short-term and long-term marriages. A short-term marriage is a marriage defined as shorter than 10 years in length, see Family Code Section 4336(b). The general rule of thumb is that support in a short-term marriage will last one-half the length of the marriage, see Family Code 4320(l). For instance, if you are married for 8 years in duration, support would last approximately 4 years in length. However, it could be ordered shorter or longer in duration, depending on the individual facts and circumstances of each case. A long-term marriage is considered a marriage over 10 years in length. In a long-term marriage, the court will generally not even set a termination date for spousal support at first instance or the time of trial. In long duration marriages, a termination date for spousal support will only happen at by agreement of the parties or at a time after the entry of Judgment.
If your spousal support order was finalized on or before December 31, 2018, the payor spouse may deduct the payment of support from his or her State and Federal income taxes and the payee spouse must include the support as income on his or her taxes. If you support order was not finalized prior to December 31, 2018, spousal support is only deductible, and considered as income, on California taxes but not Federal taxes. If a pre-2019 spousal support order is modified after December 31, 2018, spousal support payments continue to be deductible to the payor and taxable to the payee, unless the modification expressly provides otherwise, see Section 11051 of the Tax Cuts and Job Act.
Whatever your situation, Clemens | Warren L.L.P. can help you navigate through your needs.
