Divorce: A Survival Guide by Dianne R. Ophelia
II. Child Support
- How does the court decide child support?
- Do I have to follow the child support guideline?
- How long will I pay or receive child support?
- Will the children be covered by my spouse's health insurance?
- How do I calculate a time-share?
1. How Does The Court Decide Child Support?
Child support under California Law is based upon a very complicated formula, which is referred to as
the Child Support Guideline. Software programs have been developed to assist lawyers and Judges in
applying the formula. Several factors have an impact upon the level of support. General information
required to calculate support includes the following:
-
What percentage of the time do the children spend with each parent? (This is referred to as a
"time-share.")
-
The tax filing status of each parent (Single, Married, Filing Joint, Married Filing Separate &
Head of Household).
-
The income of each parent before payment of Federal and State taxes, FICA (social security) and
SDI (state disability insurance). The software program computes your net income based upon your
new filing status.
-
Mandatory deductions of each spouse, i.e., health insurance, union dues, deduction for pension,
etc. (Note: Voluntary pension deductions are not applicable.)
-
Whether you are paying or receiving child and/or spousal support from another relationship.
-
Itemized Deductions from your tax return (i.e. mort¬gage interest & real property taxes).
-
Hardship Deductions, including if you have other children from another relationship that you
support, uninsured medical expenses or catastrophic losses. These factors are discretionary with
the court.
There are other factors that may be considered as well. This is just a list of the major factors. You
should consult with an attorney to determine all of the factors applicable to your case.
The court must order the level of support based upon the State-Mandated Guideline unless you and your
spouse agree upon a different amount. Child support can always be increased or decreased if your
income or your spouse's income changes in the future.
Each parent is generally ordered to pay one-half of all work-related or education-related child care
costs in addition to the amount due under the child support guidelines unless the parents agree otherwise.
2. Do I Have To Follow The Child Support Guideline?
Go To Top ^
Setting support based upon the State Child Support Guidelines is not always the best alternative. I try
to encourage people to agree upon their own level of support rather than follow the State Guideline. Every
case is different and everyone's needs are different. A State Mandated Guideline, based upon a statewide
formula, is not always the best way to make this decision. State guidelines for child support were devised
to allow Judges to make fast and uniform support orders; however, every divorce case is unique. I do not
believe that clients should be subjected to a State Guideline just because it is faster and easier to calculate.
Depending upon the circumstances, sometimes the guideline is so oppressive that the payor spouse just refuses
to pay the support ordered. They give up trying to pay entirely. This leaves the receiving spouse to cither
live without support or continue to spend money to try to enforce the order. The guideline has ruined lives
and created serious animosity between spouses, which would otherwise not exist. I have seen payor spouses live
"on the run," changing jobs each time the enforcing spouse finds them and/or working for cash. They
can never own an asset in their name or hope to see a tax refund. The state can take away their professional
license and even their driver's license. An oppressive support order can turn a productive citizen into an outlaw.
On the flipside, I have seen families suffer dramatically when the State Guideline provides funds for only a
fraction of what they were accustomed to living on during the marriage. Kids who had long participated in
sports such as horseback riding, tennis, dance, gymnastics, etc., are jerked out of these activities when
the "guideline" does not provide enough support to maintain them. A child's standard of living will
most likely be reduced after divorce, but I suggest parents make financial sacrifices at least in the initial
stages of the separation in order to allow the children to slowly reduce their standard. Guidelines arc rigid
and unforgiving. People can be flexible if they choose to cooperate with each other.
In order to agree upon an amount different from the State Guideline, you and your spouse must agree to waive
the provisions of Family Code section 4065 and neither of you can be receiving public assistance. The following
language must be included in your order:
California Family Code Section 4065. Pursuant to California Family Code Section 4065, the
parties understand, acknowledge and affirm:
-
They are fully informed of their rights pursuant to California Family Code Section 4065, and that the award
is being agreed to without coercion or duress.
-
The agreement is in the best interests of the children involved.
-
The needs of the children will be adequately met by the stipulated amount.
-
The right to support has not been assigned to the county pursuant to Section 11477 of the Welfare and
Institutions Code, and no public assistance applica¬tion is pending.
If the parties agree to a child support order below the amount established by the statewide guideline, they
can at any time obtain a modification of the child support order to the applicable guideline level.
3. How Long Will I Pay/Receive Child Support?
Go To Top ^
California Law provides that child support is payable until a child reaches the age of 18, or if the child
is still in high school, until the child graduates from high school or reaches age 19, whichever occurs first.
Child support will also terminate upon the emancipation of a minor child. A child is emancipated if he/she enters
into a valid marriage (even if he/she later divorces), is on active duty with the Armed Forces of the United
States, or has received a Declaration of Emancipation. To obtain a Declaration of Emancipation, a child must
follow a court procedure and show he/she is living separate and apart from his/her parents with their consent
and is self-supporting.
You are not legally responsible for paying for college or providing any financial assistance after your child
reaches the age of 18 or graduates from high school, unless the child is incapacitated.
Both parents have an equal responsibility to support, to the extent of their ability, a child of any age who is
incapacitated from earning a living and without sufficient means of self-support. Please understand that
incapacitated means a diagnosed mental and/or physical disability, not just that a child is not in school and/or
unemployed.
4. Will The Children Be Covered By Health Insurance?
Go To Top ^
California Law provides that each of you must maintain your children on any health insurance available to you
through your employment at reasonable cost. Sometimes this will result in double coverage. If the double coverage
is not necessary, you and your spouse can agree that only one of you maintain the children, and if the premiums
are high, you can agree to divide the cost of the premiums.
The requirement to maintain children on health insurance lasts as long as the child support obligation exists,
i.e., age 18, or if the child is in high school, until the child graduates or reaches age 19. There is no legal
requirement after this age; however, spouses are encouraged to maintain the children as long as insurance is
available through employment.
The court generally orders each party to pay one-half of any uncovered health care costs for the children; however,
it can order payment in proportion to your respective incomes in unusual cases.
Uncovered health care costs include medical, dental, orthodontia, counseling or other related costs. The only
uncovered costs which the court does not require be paid are those incurred for cosmetic purposes only.
California Law sets out strict requirements and time limits in which a spouse is to send evidence of the uncovered
costs to their spouse with evidence of payment in order to receive reimbursement for one-half. Ask your attorney
for a copy of the law known as Family Code section 4063.
5. How To Calculate A Time Share
Go To Top ^
The following is an example of a custodial arrangement where one parent has alternating weekends, holidays and two
weeks in the summer. Their time-share would be 21% under this scenario. Time-share can be calculated in various ways.
This is just one example.
|
|
Hours |
Percent* |
Standard Alternating Weekends:
(Friday at 6 pm to Sunday at 6 pm)
(48 hours x 26 weeks)
|
1248 |
14.2% |
One Evening Per Week:
(6:30 pm to 8:30 pm)
(2 hours x 52 weeks)
|
104 |
1.2% |
Vacation:
Two Weeks (24 hours x 14 days)
|
336 |
3.8% |
Standard Holidays:
Thanksgiving: Wednesday to Sunday
Every Other Year (24 hours x 2 days)**
|
48 |
0.5% |
Christmas:
One Week Every Year
(24 hours x 7 days)
|
168 |
1.9% |
Easter:
One Week Every Other Year
(24 hours x 3.5 days)**
|
84 |
1% |
|
Total |
2014 |
22.6%
Rounded to 23%
|