About Child Support
There is no "if" about child support. The custodial parent is entitled to child support, whether or not it’s not needed.
Child support extends at least as long as your child remains a child, and through completion of high school or age nineteen in California. When your child becomes an adult or completes high school, you are relieved of the legal support obligation.
The legislature determines the age at which a young person is no longer legally entitled to support. Although it changes, the cut-off age in effect on the date of your judgment is the age to which you must support your child. A parents’ contract to support their children beyond the age when legally required to do so, such as through college, will be enforced by the court. The legal support obligation may run past majority under very exceptional circumstances when the child cannot care for himself or herself.
Child support orders never terminate earlier than the age to which child support is required. You do not have the right to contract away your child’s right to support.
California uses a mandatory, statewide support formula or schedule to determine child support. The court deducts mandatory items discussed in Income, above, from your gross income and then applies the schedule to the net incomes for you and your spouse to calculate the presumed child support award. This is the award unless discretionary factors are proven to rebut the presumption. Every adjustment to this presumed amount, up or down, requires a court finding it will not be detrimental to the best interests of your child. Mandatory minimum child support amounts take effect in the lower range of the schedule.
Only by proving both that the application of the mandatory schedule would be unjust or inappropriate, and that the revised amount would not be detrimental to your child, can you obtain any adjustment in the presumed child support amount. Factors which have the potential for making application of the schedule unjust or inappropriate include an agreement with your spouse, hardship, use of the family home if the rental value exceeds the mortgage, taxes and insurance, a live-in companion, extraordinarily high income or special circumstances.
The former child support schedule had a built-in custody order, assuming the non-custodial parent has the children every other weekend, one evening a week, half the holidays and a week during summer vacation. This most common custody order gave the non-custodial parent about twenty percent of the children’s time.
The mandatory child support formula/schedule continues the twenty percent figure for the range of ten to thirty percent "visitation." However, the new rule will not consider additional direct child support contributed during more extensive visitation with the noncustodial parent until it reaches thirty percent. When it exceeds thirty percent, the noncustodial parent must prove either substantial expenses by the noncustodial parent or substantial savings by the custodial parent before there will be any adjustment. For visitation below ten percent, the formula uses the actual percentage.
Opportunity does exist for successfully arguing that the amount of physical responsibility assumed by the non-custodial parent calls for an adjustment to the presumed amount from the schedule. This is primary caretaking, simply for less than the majority of the time. However, you may have to keep records of this so you will be able to prove your claim to the court next year.
If you are the "noncustodial" parent and have your children thirty to forty percent of the time, you qualify for a sizeable child support adjustment. If your spouse agrees, stipulate to a corrected amount. If that proposal is rejected, you’ll have to establish the allocation between parents, prove the necessary savings/expenses and recalculate child support.
Any formula such as California’s that considers the total income of you both, the relative income of each and the amount of time the children spend with each, should produce a fair result. As an ideal example, two financially equal parents sharing their children equally would not require support to be paid. However, that is not the result in many states. Split or joint custody cases are seldom seen in court, so present calendars, economic justification and perhaps expert testimony on child support if your net incomes are not equal.
Other states differ significantly in the policies expressed in their child support laws. Some give no effect to custodial parent income. Many don’t consider the time spent by the non-custodial parent with the children, although it may be as great as forty-nine percent.
The California schedule produces startling results when the parent paying support is wealthy. Support of thousands to tens of thousands of dollars per month per child is called for. In reality, this money goes to the custodial parent as additional spousal support. Under the new formula, this rebuttal factor requires the payor to prove the amount would exceed the child’s needs considering the payor’s lifestyle.
The custodial parent has higher fixed expenses or overhead as a result of having custody. If this parent must rent or buy a home with two more bedrooms for the children, this increased housing cost is attributable to the children.
However, the noncustodial parent may also incur additional housing expenses due to the amount of time he or she has the children. This is another rebuttal factor, requiring a support adjustment, if proven to the court’s satisfaction and it is not detrimental to the best interests of the child.
The special needs of your children are usually thought of as medical or tutoring requirements. These are likely discretionary additions to your child support award, taking into account the payor’s ability to pay. However, "needs" may also include music lessons and private schools if that’s been the norm. Beyond the basic needs is the vague area of lifestyle needs. Awards for enhanced lifestyle are a way to sustain pre-divorce lifestyles enjoyed by the children; they shouldn’t suffer because of which parent they live with. The custodial parent clearly benefits, a concern courts sometimes dismiss by calling the custodial parent an incidental beneficiary.
Health insurance for your children should be unaffected by your divorce since they remain your dependents. However, child support orders must require the children be kept on the employee-parent’s health insurance. If the custodial parent provides the medical insurance for the children, this also must be accounted for when setting child support. After the judgment is entered, send a copy of it with a notice to the insurer advising it of the order, the obligation to keep the children as beneficiaries and the duty to give you notice of all impending changes.
Choose a sensible method for allocating your children’s uninsured medical, dental and orthodontia expenses. Many parents share them pro rata based on income; some may split them evenly. When the non-custodial parent provides insurance, the custodial parent may pay the insurance deductible, and both parents share the rest based on net income. Under the California mandatory schedule, they are shared based upon relative net incomes, with the payor’s share added to child support.
Transportation expenses for visitation have often been shared based upon the parent’s relative incomes. The California schedule approves this, if based upon net incomes. However, the share of one of the parents may be added to the amount of child support to be paid.
Child support isn’t deductible, but the dependency exemption may offer a tax-saving opportunity to get more money to everyone. This exemption, which belongs to the custodial parent, can be transferred to the non-custodial parent. Use Form 8332 to give this tax advantage to one who can best use it, in return for more support. The transfer will make approximately forty dollars per child available every month. Of course, your agreement must be in writing if you shift the exemption in return for support. If you don’t take advantage of this opportunity, the court may order the exemptions shifted to get more support to the children.
In Chapter Eight we found the District Attorney will collect child support for a nominal fee, and enforce your order at no charge, if necessary. If you had trouble collecting temporary child support, ask the court to order it paid through the office of the District Attorney when you are in court for your divorce trial. A wage assignment, requiring the payor’s employer to send the support directly to you, is mandatory.