News and insights for residents of Santa Clara County who are facing divorce or family law related matters.
When a couple who have dependent minor children separates, it may be necessary for one parent to pay the other parent child support.
The purpose of child support is to help spread the available resources in order to serve the best interests of the child. Both parents should be involved in, and should share the responsibility ... and burdens ... of paying for childcare.
Child support in California is calculated by a computer program. This is called "guideline support".
The court will plug in a number of different pieces of information into the guideline support program. While there are many factors, the main ones are the number of children, the timeshare to each parent, and the parent's incomes.
(a) Timeshare to Each Parent: Guideline support looks at how much of the child or children's time are spent with each parent. A child who spends 100% of the time with Mom is more likely to need support from Dad to help pay for childcare, than a child who spends 50% of the time with each parent.
(b) Parents' relative incomes: If one parent has a much higher income than the other parent, then the higher earning parent is more likely to have to pay the lower earning parent child support, and the amount of support would be higher than if the parents had equal incomes.
The factors are all calculated together in determining support. A parent who makes less money, but has a much smaller timeshare might still have to pay support to the higher-earning parent. There may be little or no support when timeshare is split equally between the parents and they have equal incomes.
After the court issues a permanent order setting child support, you can revisit the issue of support whenever there is a change of circumstances. "Change of circumstances" is anything that occurred after the previous support order was made that would justify changing the amount of support. This includes but is not limited to changes to the actual timeshare percentages, living expenses and either parent's income.
Even if you don't have reason to suspect a change of circumstances, you may request updated income information from the other side once a year. This may help you determine if there has been a change of circumstances with respect to the other side's income.
Typically, the parties split the costs of uncovered expenses equally. However, the court has discretion and can make a different order if it finds that doing so is in the best interests of the child.
What if I can't afford to pay guideline support? In most cases, you're stuck with guideline support. It may not be what you want, but it's usually what you get. You can ask the court to award non-guideline support, but absent special circumstances you probably won't get this. The court will need to make certain findings before awarding non-guideline support.
You should IMMEDIATELY ask the court to have your support recalculated, based on your change of circumstances. The safest way is to file a Request for Order seeking modification of support with the court. A modification of support is only retroactive to the date the request for modification was filed, so it is vital to file the request as early as possible.
Here's an example of what not to do: John was ordered to pay guideline support to his ex-wife Jane to help support their 5-year-old daughter. At the time of the original order John had stable employment at a large tech company. A few years later John lost his job and took a much lower paying tech job. John then called Jane and told her he lost his job and can't afford to pay the ordered support. He asked her if he could pay less. Jane agreed. Over the next few years John paid whatever he could afford, but each payment was always a lot less than the original order.
John and Jane then had a falling out and stopped getting along. Jane contacted the Department of Child Support Services (DCSS) and accused John of being in arrears on his support obligation. DCSS then filed a support enforcement case against John, seeking tens of thousands of dollars in arrearages for years of underpayments plus interest. John claims Jane agreed to the reduction in support. Jane disagreed and claimed she always expected John to pay his full support.
Result: John is in arrears on his support obligation. He must pay his arrearages plus interest. John's mistake: He failed to immediately formalize the change in support by getting a new court order when his circumstances changed. As a result, the original court order remained in effect and arrearages began to accrue.
Under California law, both parents have the obligation to work full time to the best of their ability to support the child. There's no exception for going to college. If one parent decides not to work full time for whatever reason, the court has the option to calculate guideline support using the income the parent should have been making had he or she been complying with the law. This is called "imputing income".
In order to impute income to a parent, the court must find that the parent had the ability to work to a higher level (had the skills), the opportunity to work at the higher level (jobs were available), but lacked the willingness to work at a higher level.
Even with the above proven, the court has the freedom to decide whether or not to impute income.
It is public policy that both parents be involved in supporting their children. The court may make an order accepting less than guideline child support or even waive child support entirely, as long as the needs of the child are met. However, such an order is against public policy so is frowned upon. It also isn't binding on the spouse who was entitled to support.
Example: Husband and Wife settle their divorce case. As part of the settlement wife agrees to waive child support. The Marital Settlement Agreement (MSA) is drafted to include language that the needs of the children are met so no support is needed at this time. The day after the agreement is signed, wife decides she wants more money and goes to court asking for guideline support. Husband objects arguing that wife negotiated away her right to child support. Result: Wife gets guideline support, because the waiver was not binding.
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If you think child support may be an issue or if you need a change to an existing support order, you should consult an experienced Santa Clara County child support attorney as soon as possible to determine your rights. Failure to take immediate action could result in you receiving less support than you need, or paying more in support than you should.