CHILD SUPPORT IN CALIFORNIA
Family Code defines child support as obligation owing to a child or to a county as reimbursement of public assistance paid on behalf of a child, as well as, past-due support and arrearages. Both parents have an obligation to support their children pursuant to the statewide uniform child support guideline, which imposes an obligation on the courts to ensure that parents, first and foremost, support their minor children according to both parents' circumstances and station in life. Parents who are not married owe the same duty of support to their children. The duty of support is not owed to stepchildren (except in cases of parentage by estoppel,) as well as, grandchildren (with an exception for visitation-related expenses if visitation is ordered by the court.) It is against public policy to waive child support or to indirectly abridge it in any way.
Duration of Duty of Child Support
Absent agreement between the parents or a needy incapacitated adult child, child support normally terminates when the child reaches the age of 18. If the child is still in high school, duty of support continues until the child completes 12th grade or reaches the age of 19, whichever occurs first. If a parent owes child support arrearages, the child may enforce the order even after s/he reaches the age of majority. The court has authority to approve the parents' agreement to extend child support payments past the age of majority. In cases of needy incapacitated children, the duty of support continues past the age of majority if the child is incapacitated from earning a living and is without sufficient means.
Actions for Child Support
If a parent fails to pay support, the other parent or the child through a guardian ad litem may bring an enforcement action. Usually, however, child support is ordered in actions where support is at issue, such as dissolution of marriage, legal separation, nullity, parentage proceeding, DVPA (domestic violence) proceeding.
The court must calculate the amount of support in accordance with the statewide uniform child support guideline otherwise the order is a reversible error as a matter of law. The court must use guideline support in establishing pendente lite (temporary), permanent, or modification order. If the court deviates from the guideline, it must make either written or on-the-record findings to support the deviation.
The two major factors the court looks at when applying guideline support calculation are disposable income of both parents and percentage of time the payor has with the child.
The guideline formula is based on each parent's net monthly disposable income. The court has wide discretion to determine the gross and net incomes. Attorney's argument is extremely important in this area of the guideline. The calculation must be made using current income at the time of the support hearing. It is especially important when income fluctuates. The court then must base the calculation on average current income. Some courts consider income to be based on taxable items only and use definition of income straight from the tax code. However, other courts that do not agree with the "tax model" and uses nontaxable items as well. Again, representation by an attorney is vital. Income that the law expressly excludes:
- income received from child support payments;
- income received from any public assistance program;
- child support received by a party for children from another relationship;
- Supplemental Security Income (SSI) benefits derived from a need-based program for which eligibility come from the person's age, blind or disable status and income below statutory amounts
There are also permissible deductions from income. Again, attorney representation is vital to establish proper deduction and ensure that all possible deduction are taken into consideration. Parents' expenses, however, are not taken into consideration. As a matter of fact, protecting the parents' living standards is not included in the guideline policy. The court must take into consideration tax filing status. However, if a parent is refusing to pay tax, income tax liability is not deducted from gross income of that parent. Other deductions include:
- employee FICA contributions;
- union dues
- retirement contributions (if required as a condition of employment)
- health insurance premiums
- certain support payments
- job-related expenses
- "hardship" as defined in Fam. C. Section 4070-4073
- and others
The court has the ability to impute income to a parent without actual income based on that parent's earning capacity. The court may impute income where the parent:
- has the ability to work
- has an opportunity to work
- lacks the willingness to work consistent with ability and opportunity
Imputation of income is subject to the child's best interests limitation. Income imputation is another crucial area for attorney advocacy on behalf of their client.
The time-sharing (percentage of time) is based on the parents' periods of responsibility for the child instead of physical custody of the child. A parent's time-sharing can include the time the child spends in day care. So, the noncustodial parent is not usually entitled to a time-share credit in the guideline calculation for time the child spends in day care. Similarly, for grade school children, the parent that has responsibility for the child while s/he is in school can, upon an evidentiary showing, have that time assign to her/him. Parent that wishes to establish imputed time-share has the burden of proof and must use admissible evidence to show that he/she has responsibility for the child while the child is in the school.
Parents may agree to child support payments, which are below the guideline support. However, in those cases the amount of support can be modified without the need to show any change of circumstances. Parents, who agree, on the other hand, to support above guideline, are subject to the change of circumstances rule if they want to downward modify the support. Parents may not agree to waive child support altogether. It is against public policy.
Once the court orders child support, the court must include an earnings assignment order. Child support can also be ordered paid directly from the payor's ERISA-governed pension plan provided the order satisfies federal QDRO requirements.
SPOUSAL SUPPORT IN CALIFORNIA
In California, as a general rule, spouses and registered domestic partners, who are living together owe each other a duty of support. While spouses or registered domestic partners live together, they may not waiver the support duty. It cannot be contracted away or waived. Premarital agreements can handle support issues but they must meet strict statutory requirements and enforcement standards.
A spouse (or a domestic partner) may bring an action to enforce the duty of spousal support while the parties are still married. Most commonly, however, spousal support becomes an issue in dissolution of marriage and/or domestic partnership termination proceedings. The court has the ability to award temporary support while the dissolution action is pending. In fact, the court can order any amount necessary for the other spouse's support unless the requesting spouse is an abusive spouse. Domestic Violence Prevention Act (DVPA) proceeding is another type of action where the court can order spousal support even if there is no pending divorce case. The court in those cases may order spousal support even before it finds that the spouse has been abused. The court cannot, however, award support to the responding party in a DVPA proceeding. If the respondent is seeking support, s/he must file a dissolution of marriage, nullity, or legal separation action. In default cases, the court cannot order spousal support unless it was requested on the petition.
In California, spousal support is not generally affected by evidence of fault. Exceptions include:
- no support may be awarded to a spouse convicted of attempted murder of their spouse
- no support may be awarded to a souse convicted of a violent sexual felony
- presumption against support award to a spouse convicted of intraspousal/child domestic violence
Evidence of "fault" does come up in cases where:
- the supporting spouse is intentionally not earning up to his/her capacity
- the spouse requesting support failed to make reasonable good faith effort to become self-supporting
- the spouse seeking support has mismanaged income-producing assets
- the custodial parent in an international move-away case has frustrated the other parent's visitation rights under a California order
- there is history domestic violence and/or criminal conviction of an abusive spouse
Temporary Spousal support
The purpose of temporary spousal support is to maintain the marital standard of living while dissolution of marriage action is pending. The court does not have to consider Fam. C. Section 4320 factors in deciding temporary support. The amount of temporary support is solely within the court's discretion and it is broadly based on need and ability to pay. Often, it is decided using standardized support guideline software.
The needy spouse may move for temporary spousal support at the very outset of the proceedings by filing a Request for Order.
Permanent spousal support
The court must consider and weight factors contained in Fam. C. Section 4320. The court weighs the factors differently in each case depending on the circumstances of each case. The marital standard of living is a reference point for the court. The court generally takes the marital standard of living to refer to a general station of life. It is considered in light of the earning capacities of the spouses. To determine the earning capacities if the spouse is not working or working below his/her capacity, the court often appoint a vocational examination.
One of the factors that the court considers in awarding spousal support is need of the requesting spouse. It is improper for the court to consider the requesting spouse's alleged expenses only without balancing the other factors. Actual marital expenses must be used instead of expenses that the requesting spouses proposes as his/her wishes.
The goal of spousal support is self-sufficiency. The supporting spouse must become self-supporting within a reasonable period of time. Reasonable period of time usually means half the length of the marriage except for the long-terms marriage of 10 year and over. However, the court has discretion to make that period longer or shorter. In long-term marriage, the goal is still self-sufficiency but the period of time is generally not half of the length of marriage.
The length of marriage impacts both the need for support and the amount and duration of the order. In marriages over 10 years, the court has not discretion of terminate spousal support jurisdiction unless the parties agree to terminate jurisdiction. Some marriages that are shorter than 10 years can still be considered to be marriages of "long duration" depending of several factors.
In setting permanent spousal support the cannot use the temporary support amount as a benchmark. Instead, the court must consider all the section 4320 factors as though it was a new case. The court also cannot use any guideline support to set permanent support.