What is the Duty to pay California Child Support?
For California guideline child support, both parents have an equal duty to support their kids. (California Family Code section 3900.) Usually, the parent with the kids has higher expenses and requires payments from the other parent to meet the children’s needs.
The duty to support a child ends when the child reaches the age of 18 and is no longer a high school student, becomes self-supporting or reaches the age of 19 – whichever occurs first. (California Family Code section 3901.) When the parents are separated or not married, support is an issue.
How Much Is Child Support in California?
A lot of times, parents can just agree on an amount. But when a party won’t pay or the parents can’t agree on how much, a court or local child support agency can step in. The court will look at the case information related to the family finances and calculate a monthly payment.
Courts calculate support using a formula known as the Statewide Uniform Guideline. (See California Family Code sections 4050 et seq.) The formula is fairly complex. (It can be found at California Family Code section 4055 here.)
The basic formula as described in Family Code section 4050 is as follows:
CS = K[HN %68 (H%)(TN)]
This is where,
CS = child support amount.
K = amount of both parents’ income to be allocated for child support
HN = high earner’s net monthly disposable income
H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. In cases in which parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.
TN = total net monthly disposable income of both parties.
Ok- in English, please?
Basically, the guideline considers the income of each party, the amount of time each parent spends caring for the child and certain deductions. These deductions can include health insurance premiums, mandatory retirement payments or job expenses. The formula also considers the taxes each party pays.
Most lawyers and judges use special software to calculate the guideline child support amount. In fact, I’d say that most attorneys don’t even really know the formula at all. They just know how to use the software.
If the Court decides the amount of child support, the judge has to follow the guideline to the penny – unless she can show a really good reason to choose a different number. People can agree to a non-guideline order if they wish. But, they have to let the court know in their agreement that they know the guideline and are choosing a non-guideline order anyway.
This is typically done by including a copy of the printout from the child support calculator software along with a special court form called a “Non-guideline Child Support Order Attachment”. (Judicial Council Form FL-342(A)) Sometime’s attorneys will attach a copy of the support calculation.
The California Department of Child Support Services has an online child support calculator for figuring the amount of guideline child support. However, our experience is that the number is often inaccurate. It’s always smart to see a lawyer to really know what the amount should be. But the link to the online child support app is here if you are curious.
What kinds of income are used to calculate Guideline Child Support?
The Family Code considers “income from whatever source derived” for calculating child support payments. (See Family Code section 4058). This includes commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support received from a previous spouse. (W-2 income)
The court also looks at income from a business (1099 or K-1 income). Sometimes figuring out what income is available from a business for support can be tricky.
Certain deductions people may deduct on a business tax return – such as perquisites and depreciation- are not allowed in family court and will be “added back” into business income. So, what’s on the tax return as business income may require adjustment. Often people will hire a financial expert to help determine the income stream from a business for the support calculation.
Sometimes the court will look at employee benefits or self-employment benefits for the income available for support. If a party is not working, the court may, in its discretion, look to the earning capacity of a party rather than actual income. For example, a party may be choosing not to work, but the court may impute income for the support calculation as if the person was working full time.
Need help calculating guideline child support?
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What Does Guideline Child Support Cover?
Guideline Child Support: Room and Board
Child support guidelines basically cover room and board. That’s the living expenses for a child incurred by the parent caring for the child. Built into the formula is the idea that the child should have a similar living experience at both parents’ houses. It is not usually ok for one parent to live a posh lifestyle while the other parent lives in squalor.
More than the bare necessities
A common misconception is that guideline child support only covers the barest of necessities. This is not quite right. It can cover a broad range of expenses and parent responsibilities like entertainment, family luxuries or even fast food. The key is that the child is being maintained at his or her standard of living- which may be above mere necessities.
No second-guessing how a parent spends the child support
Additionally, the paying parent does not get to second-guess how the payee spends the money. The family courts don’t make parents prove that they are using the support payments for the children’s financial and medical support. Instead, they just assume that the parent getting the support is paying for the child’s needs.
Beyond room and board, the court will also order “mandatory add-ons”. For instance, parents equally split the costs of unreimbursed medical, counseling, therapy and orthodontia costs. Parties also split child care costs related to work or to education needed for further employment.
There are also “discretionary add-ons,” which cover stuff like extracurricular activities, sports, camp or private school that guideline child support doesn’t cover. They are discretionary because the judge has the choice to order these costs split or not. Most of the time, parties can agree on these items.
When Are California Child Support Payments Due?
Typically, courts order monthly child support paid on the first of every month. If agreed, the parties can choose their own due dates.
To collect on a child support case, the State of California has a system for child support enforcement where an employer can deduct the payments directly from the paycheck like taxes. The employer sends the money to a special agency. This office then sends the funds to the payee. If the parties agree, they can pay directly.
What happens if you fail to pay child support in California?
You must pay your child support.
The California family courts and child support agencies take child support orders as serious as a heart attack. Hence, you must pay no matter what.
The payments are not dischargeable in bankruptcy. Rather, you have to pay your child support before you pay your own bills. Indeed, the legal rate of interest (10%) can accrue if you are late. There can also be other steep penalties.
The California Department of Child Support Services (DCSS) can do mean things to people who don’t pay. They make sure that custodial parents receive court-ordered financial support. These folks don’t play around.
You will make your judge mad with a failure to pay child support.
If a judge thinks that you are a bad actor because of failure to pay child support, he may subconsciously penalize you in other areas of your case. Judges aren’t supposed to do this, but they are only human. We’ve even seen missed payments affect custody rights.
How Can I Change My Child Support?
Must have a court order to modify child support
Parties can modify the amount of support either by stipulation or court order. A stipulation is an agreement that both parties sign. The court adopts the stipulation as its own order.
If the parties don’t agree to a change, a California child support order can only be changed by way of a noticed motion to modify and an order of the court.
Very importantly, if the parties agree to modify or stop the child support payments, they must get a court order. This order can either be by stipulation or by noticed hearing. But an order it must be.
Otherwise, the child support obligation continues even if the parties agree to suspend payments. We’ve seen lots of folks think that they ended their support obligation by mutual agreement only to find that they had accrued a massive support arrearage with penalties and interest. The moral to the story? Get a court order.
Remember, when in doubt get legal advice.
Weber Dispute Resolution can help you file your child support modification.
Give us a call at 858-410-0144 to talk about it.
Consider mediating your child support modification.
Rather than let frustration over child support questions ruin your co-parenting relationship, consider hiring a mediator to help with the modification.
Weber Dispute Resolution can help you negotiate your modification.
Usually, in only one or two sessions, we can help parents figure out child support. We’ll write it up so that it’s legal with the court.
To prepare for your session, collect paystubs and other papers showing your earnings. These can be tax returns, W-2s, profit and loss reports and all documents that show income.
Also, collect information and documents about how much you pay in health insurance, deductible mortgage interest, property taxes, union dues, required retirement payments and unreimbursed job expenses. This will give your mediator everything he or she needs to calculate your support.
Once you agree on the amount, your mediator can prepare a stipulation for child support for the judge to approve. At any point during mediation, you can have your attorney review documents prepared by the mediator before you sign. Then, you can keep focusing on being great parents knowing that you handled things peacefully and respectfully.
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Weber Dispute Resolution works with parents to agree without going to court.
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