Child support in California can be incredibly confusing and feel completely arbitrary. For people receiving support, often times it’s nowhere near enough to feed, clothe, and shelter your child. For those who are paying support, it seems like too much money is going out of pocket to be spent on unknown child-related expenses, and sometimes on supporting the other parent instead of your own children.
It’s easy to get frustrated and lost in the middle of foreign terms and numbers. Knowing where you are going can give you peace of mind and a greater ability to make smart decisions that are best for you and your children. While your situation is unique, having a better understanding of what you’re doing, where you’re going, and why you’re going there will help you move through the child support process successfully. This guide is intended to be a roadmap that will give you a preview of what to expect and what mistakes to avoid. Here are 10 basic questions with detailed answers to help you better understand the issue of California child support:
- Step 1: What is the purpose of Child Support?
- Step 2: How is Child Support calculated?
- Step 3: What are Child Support add-on expenses?
- Step 4: When does Child Support begin?
- Step 5: When does Child Support end?
- Step 6: How can Child Support be modified?
- Step 7: How is Child Support paid?
- Step 8: How is a Child Support order enforced?
- Step 9: What is the State Disbursement Unit?
- Step 10: What are the exceptions to guideline Child Support?
Step 1: What is the purpose of Child Support?
Child support is a monthly obligation that a parent pays to another parent to help cover the costs of raising a child. In California, a parent’s first and foremost obligation is to support his or her minor children. This obligation is gender-neutral, meaning that mothers and fathers have equal responsibility to pay for the support of their children to the best of their ability. The state’s goal is for children to share in the standard of living of both parents. Child support paid from one parent to another parent is intended to minimize the disparities in living standards in the two separate homes.
A uniform state guideline has been established in order to create a fair and efficient method of calculating child support. This guideline takes into account California’s high cost of living and is presumed to be the correct amount of child support in all cases. Without an agreement, deviating from using this guideline calculation only happens in very special circumstances. Guideline support is designed to reduce conflict and the potential for litigation.
Step 2: How is Child Support calculated?
California guideline child support is based on a complex algebraic equation that takes into account two basic factors:
- The disparity of income between the parents; and
- The disparity of timeshare.
The disparity of income
In general, the greater the disparity between the parents’ incomes, the higher the child support obligation. For example, if Parent A earns $100,000 per year and Parent B earns $15,000 per year, Parent A can expect to pay a significant amount of child support. If Parent A and Parent B have relatively equal incomes, child support will be less.
The disparity of timeshare
Likewise, the greater the difference in the amount of time each parent spends with the children, the greater the child support payment. If Parent A has a 20% timeshare and Parent B has the other 80% of the time, Parent A should be prepared to pay a large amount of child support. If both parents have an equal timeshare, child support is less. The general theory is that a parent who has more time with the children will have a greater need for child support, as that parent incurs more costs in housing, feeding, clothing, and otherwise supporting the children.
That said, many people mistakenly believe that there should be no child support if there is an equal timeshare, or if the incomes are roughly equal. It’s important to understand that both factors are used in calculating child support. If Parent A and Parent B have equal incomes, but Parent A has a 10% timeshare, Parent B can expect Parent A to pay child support. Conversely, if Parent A and Parent B have an equal timeshare, but Parent A greatly out earns Parent B, there will be child support.
The complicated formula is too difficult for the average person to use, so there are a number of computer software programs designed to calculate guideline child support. Some of the most common programs are DissoMaster™, XSpouse™, and SupporTax®. The program itself is less important than the information that needs to be inputted into the program to run child support numbers. In order to calculate accurate child support, it is imperative to correctly enter each parent’s income, as well as the correct timeshare. Child support calculators are only as accurate as the data entered.
The actual child support formula is as follows:
CS = K[HN – (H%)(TN)]
- CS = the amount of child support
- K = the amount of both parents’ incomes that is allocated for child support;
- HN = the high earning parent’s net monthly disposable income;
- H% = the high earning parent’s approximate timeshare with the child;
- TN = the total net monthly disposable income of both parents
If that isn’t complicated enough, if K = 1+ H% or K = 2- H%, a separate fraction is applied. And for each additional child, CS is multiplied by a different factor ranging from 1.6 for 2 children, up to 2.86, for 10 children. There are a number of other exceptions and other nuances to this formula. Is it any wonder that California relies on computer software to assist with these calculations? As a general rule of thumb, it is far more important to understand the factors that make up the variables, as opposed to trying to understand the formula itself.
Below is a brief guide on some of the various income and deductions that impact the calculation of guideline child support:
Wages/Salary. Wages/salary is income subject to employment tax. For child support calculation purposes, this amount is the gross amount, before any pre-tax deductions or taxes paid. Most people in the general workforce are employees who receive a W-2 for tax filing purposes. This income is considered wages/salary. In determining wages/salary, it is important to figure out how often a person is paid. One of the most common mistakes is failing to understand how the frequency of pay periods affects average income.
Bi-weekly. People who are paid on a bi-weekly basis have 26 pay periods per year. These individuals receive paychecks every other week on the same weekday, typically Friday. If John is paid $5,000 on a bi-weekly basis, he has 26 pay periods per year. Multiplying $5,000 by 26 pay periods equals $130,000 in annual income. Dividing $130,000 by 12 results in an average monthly income of $10,833.33.
Semi-monthly. Those who receive two paychecks each month have a total of 24 pay periods per year. Semi-monthly employees receive their income on the same two calendar days of the month, every month. Common examples are on the 1st and 15th, 15th and 30th, or 5th and 20th of each month. If, however, John is paid $5,000 on a semi-monthly basis, he has 24 pay periods per year. Multiplying $5,000 by 24 pay periods equals $120,000 in annual income. Dividing $120,000 by 12 results in an average monthly income of $10,000.00.
As can be seen by the example above, miscalculating John’s income can result in inflating or deflating his income by $10,000.00. That one mistake can have a tremendous impact on child support.
Self-Employment Income. Self-employment income is income subject to self-employment tax. Many people who are self-employed receive a 1099 for tax filing purposes and/or use a Schedule C (Profit and Loss Statement) for their tax returns. Since this income is taxed differently than wages/salary, it is important to properly characterize this kind of income and not enter it under wages/salary.
Many people are confused by their employment status, assuming that if they work for “a company,” they can’t be self-employed. Independent contractors are considered self-employed for both tax and child-support purposes. A very quick test is to look at a paycheck: are taxes withheld? If not, that person is likely to be self-employed.
Voluntary Retirement Contributions. Many employers offer Defined Contribution Plans such as 401(k), Thrift Savings Plans (TSP), 403(b), and Simple IRA accounts. Employees have the option to contribute pre-tax income to these plans up to a certain amount each calendar year. These pre-tax employee contributions affect child support, although the employer contributions do not affect child support. Child support is calculated based on net disposable income. Voluntary retirement contributions lower taxable income. Put another way, income that is not taxed increases net income. More net income means more income available to pay support or a lessened need for support.
It’s important to be aware of the maximum contribution amounts, which vary from year to year. For individuals over the age of 50, the maximum contribution increases. While some people contribute a steady amount to retirement throughout the year, others “frontload” their contributions in the first half of the year. Average monthly retirement contributions should never exceed the maximum contribution amount for the year.
New Spouse Income. Many people who remarry after divorce are leery of disclosing their new spouse’s income. It feels like an invasion of privacy, or even worse, that their spouse’s income will be used for child support, which just seems unfair. If a parent has remarried and is filing taxes jointly, it is often times a benefit to the payor of child support to disclose the new spouse’s income. While this seems counterintuitive, remember that child support is based on net income. A new spouse’s income will likely increase the parent’s overall tax liability on the parent’s individual income, because the dual sources of income will result in being in a higher tax bracket. A higher tax bracket thereby reduces the person’s overall individually earned net income because of an increase in taxes. Even though the household benefits from a joint filing status and the new spouse’s income, the payor of child support will individually have less personally earned net income. Less net income means lower child support.
A new spouse’s income is not used for calculating child support, period. There are no exceptions to this rule. Likewise, a new spouse’s share of FICA/ Medicare, California State Disability Insurance (CASDI) and self-employment tax are not used in calculations. The only relevance a new spouse’s income has on the calculation of child support is regarding the payor’s specific tax bracket. The law requires an accurate calculate of net disposable income, which does require disclosure of a new spouse’s income. In general though, accurately representing net income will ultimately be a benefit to the payor of child support.
For individuals receiving child support, this may seem unfair, especially if the new spouse enables the other parent to enjoy a significantly more luxurious lifestyle. Child support, however, is based on what each parent earns. Hopefully the new spouse’s income will indirectly allow the children to live the best life at each parent’s home.
Other Non-Taxable Income. Many enlisted military personnel are dismayed to learn that their tax-free allowances such as Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are considered for purposes of child support. Even if a military member is living on base, the value of housing is attributed as tax-free income. California law defines income available for support as income from whatever source derived, including employment benefits.
Disability benefits are another common category of non-taxable income. This includes State Disability (in California, this is called CASDI), Federal Disability (like SSDI or SSI), and sometimes private insurance disability benefits. While there are times when disability income is at least partially taxable, it is typically tax-free. These benefits are also considered income available for support.
Health Insurance Premiums. Health insurance premiums are deducted from net disposable income. In other words, money contributed to a health insurance premium is excluded from child support calculations. It is important to note whether the contributions are pre-tax or post-tax. Voluntary pre-tax contributions to Health Savings Accounts (HSA) or Flexible Spending Accounts (FSA) are not considered health insurance premiums. Out-of-pocket expenses such as co-pays or deductibles are not considered part of health insurance premiums either.
Itemized Deductions. The two most common itemized deductions are property tax and mortgage interest deductions. Individuals who have an “impound” or “escrow” account pay property taxes and homeowner’s insurance to their mortgage lender on a monthly basis. The payment is typically mixed in with mortgage interest and principal so the person makes one monthly payment to the mortgage lender. A mortgage statement typically breaks down the principal/interest payment but often does not specify how much of the payment goes to property tax versus insurance. The most accurate ways of determining property taxes is to look at the annual assessment statement and/or a tax return.
The general rule of thumb is anything that results in a tax benefit typically increases net income. More net income means more income available to pay child support or a lessened need for child support. Unlike health insurance premiums, which are deducted from net disposable income, most other itemized deductions are still included as income available for child support. Therefore, a parent who owes child support will pay more if he or she owns a house.
Union Dues. Like health insurance premiums, union dues are deducted from net disposable income. In other words, money contributed to union dues is excluded from child support calculations.
Mandatory Retirement. Mandatory retirement contributions are deducted from net disposable income. In other words, money contributed to a mandatory retirement account is excluded from child support calculations. If a parent has mandatory retirement contributions, it is vital to determine if the retirement contributions substitute for State Disability and/or Social Security taxes. A parent should not be allowed to receive tax deductions unless he or she is actually paying the taxes. Reviewing a parent’s pay stubs carefully is essential in properly calculating income available for support.
Child Support Paid for Other Relationships. While child support is not tax deductible, California law allows court-ordered child support to be deducted from net disposable income. A judge can also consider voluntary child support paid, so long as it does not exceed guideline child support. It’s important to verify the actual amount of child support paid for another child.
Tax Filing Status/Dependency Exemptions. Most people generally understand that filing taxes as Single is generally not as beneficial as filing Head of Household or Married Filing Jointly. The reason for that is because it affects a person’s tax bracket, deductions, and at the end of the day, that person’s net income (i.e. money in pocket). Therefore, how a parent files his or her taxes has a very real impact on support calculations. Likewise, dependency exemptions are sought after because they typically increase net income. Many people think that their W-4 or their paycheck stubs determine tax filing status; however, that is a myth. What matters is how a person actually files his or her taxes, both for tax filing status and the number of dependents he or she claims.
For more information regarding dependency exemptions, please refer to this article: Dependency Exemptions: How Claiming Dependents Affects Taxes and Child Support.
Many parents have very complex incomes that exceed their base hourly rate or annual salary. These “extra” sources of income include overtime, shift differentials, bonuses, stock awards, and commissions. These forms of income are able to be included for purposes of child support calculations.
The court has discretion in determining how to treat this extra income. If a parent’s income can be fairly and accurately averaged to include these additional sources of income, this creates a relatively stable and simple solution. For example, if a parent earns $100,000.00 per year and predictably receives a $10,000.00 commission every quarter, the additional $40,000.00 of income can be included to her base to result in $140,000.00 of annual income, or $11,666.67 per month.
In other situations, a parent will earn one annual bonus that relies on the company’s performance, the stock market, and a number of other conditions outside of that parent’s direct control. Or a parent might have to suddenly work mandatory overtime due to a company emergency or an unexpected strike. These unpredictable forms of “extra” income should still be included in support calculations, albeit in a different way.
This “extra” support is captured through a percentage of the paying spouse’s gross income over base monthly average income. This percentage is part of a guideline child support calculation, and all of the accepted software programs have the ability to calculate this extra support. The guideline percentages range widely depending on the exact amount of extra income earned. These forms of support have many names, including Smith-Ostler, Ostler-Smith, add-on support, and bonus support. For example, if a parent earns an annual bonus of $50,000.00, for additional child support, he would have to pay a percentage of that $50,000.00 bonus. Bonus payments are based on gross (pre-tax), not net income over a base salary.
In general, there are advantages and disadvantages to both Ostler-Smith support and a fixed average monthly amount. By agreeing on a set monthly amount that assumes some “extra” income, both parents are able to budget and plan for the monthly amount of support. There are no complex calculations, exchanges of income information, or uncertainty in the child support amounts. On the other hand, if a parent does not earn the expected amount, he or she may file for a modification based on a change in circumstances. If a parent earns more than the expected amount, the other parent may feel as though he or she lost out on the “correct” amount of child support.
Conversely, selecting Smith-Ostler support has its own unique set of advantages and disadvantages. This way of calculating support always ensures that guideline support is paid. Child support is never too high or low, and it will always be based on a parent’s actual income over base. That said, ensuring that the correct amount of support is paid requires regular accounting. The parent paying support will have to provide his or her pay stubs, and both parents will have to individually run calculations to ensure the correct percentage is paid. Some parents find this method of accounting far too troublesome and difficult to complete on a long-term basis.
There are hybrid approaches to these two methods that include once a year accountings instead of monthly accountings, a fixed percentage (as opposed to a range of percentages based on the amount of extra income), and even limiting the type of extra income that is included for calculating add-on child support. For example, a parent who receives a raise can pay a percentage of her raise in a lump sum once a year for additional child support, as opposed to paying it every month. Or, instead of trying to learn how to read a complicated range of percentages depending on the amount of extra income, a parent can pay a flat percentage of that income, regardless of the amount. Other parents choose to ignore certain forms of income, like raises or stock options, and restrict additional income available for support to bonuses. Finally, parents can choose to be even more creative by disproportionately dividing child-related expenses like private school tuition or agreeing for a parent to contribute to a 529 college savings account instead of paying additional child support. The options are endless.
There are times when a parent fails to meet his or her financial obligation to support the children. These parents refuse to seek and maintain full-time employment. A judge can attribute, or impute, income to these parents based on their ability and opportunity to earn that income. Many parents mistakenly believe that imputing the other parent with income is easy and does not require thorough research and preparation. The words “ability” and “opportunity” when used in the context of imputing income to a parent have very specific legal definitions.
A judge cannot impute income to a person without making specific factual findings that he or she has the ability and the opportunity to earn that income. Ability means that it is within the person’s skillset, training, work experience, and education to earn a certain amount of income or obtain a certain position of employment. In general, the average person has the ability to at least earn the equivalent of minimum wage. In order to prove one’s ability to earn a certain income, it’s important to recognize the limits on what that person can and cannot do for employment. For example, someone with a high school diploma has no ability to gain employment as a dentist. Likewise, someone who is not a licensed cosmetologist does not have the ability to work as one. Those are two examples of a person’s inability to work in a certain career field.
Opportunity requires more than a quick Google search or looking through Craigslist ads. It means that a person has the present opportunity to have a certain job making a certain income. Just because “a” job is available to the general public does not automatically mean that the person specifically has the opportunity for that position. Opportunity is typically the more difficult point to prove.
Alternatively, the judge can order these parents to look for work. These orders, commonly known as “seek work orders,” typically require a parent to apply for a certain number of jobs each week, to keep a log of those efforts, and to share a copy of the log with the other parent on a regular basis. A failure to comply with the seek work order can result in a judge imputing a parent with income.
In other cases, a parent will lie about his or her income in an effort to reduce or maximize child support. Parents who are self-employed can sometimes hide income through working for cash or exchanging services. This is a difficult situation, as it is nearly impossible to prove someone’s income without paycheck stubs or tax records. In these cases, it is possible for the judge to consider the parent’s living expenses as a yardstick to measure his or her income.
Calculating child support is a precise science that requires a complete understanding of what is or is not considered income available for support. A mistake can easily cost a parent a large sum of money. As such, it is vital that parents spend time to carefully review and understand both their own income and the other parent’s income.
Step 3: What are Child Support add-on expenses?
In addition to guideline child support, parents can be ordered to contribute to specific additional expenses for the direct benefit of the children. There are two general categories of child support add-on expenses: mandatory and discretionary.
The judge is required to divide two categories of child-related expenses. These two groups are:
- Child care costs related to employment or reasonably necessary education or training for employment; and
- Reasonable uninsured health care costs for the children.
In general, a judge will typically divide mandatory add-on expenses in half. If there is a big disparity in income, the judge can apportion the expenses based on how much net income each parent has after support is paid.
It’s important to provide and receive proof of actually incurred childcare costs. At times, a parent will use a relative for childcare and falsely claim these expenses. Receipts, proof of payment through cancelled checks or bank statements, and a contract detailing the costs are all important pieces of evidence for childcare expenses. Making arrangements for each parent to directly pay the childcare provider can reduce conflict and give each parent assurance that the money is actually being used for childcare. Alternatively, if parents have a roughly equal timeshare, it may also make sense for each parent to obtain and pay for his or her own childcare.
Childcare expenses need to be specifically related to employment or education/training for employment. Babysitting expenses incurred for a parent’s social life are not part of the definition of a mandatory add-on expense. Preschool is not necessarily childcare, so it is also important to distinguish between the educational component and the childcare component of the two.
There is a very specific method of dividing uninsured medical expenses that can be found on Judicial Council form FL-192, the Notice of Rights and Responsibilities. It is very important to review and understand these procedures. A brief summary is below:
- If a parent receives a bill for uninsured medical expenses, a copy must be provided to the other parent within 30 days of receipt;
- A parent incurring an uninsured medical expense must provide the other parent proof of payment and proof of the expense within 30 days of incurring the cost;
- A parent receiving notice from the other parent that an uninsured health-care cost has been incurred must pay his or her share within 30 days, unless otherwise agreed upon between the parents or ordered by the court; and
- Health insurance must be used at all times to the extent that it is unavailable for health-care costs. A parent who goes outside the network coverage without written agreement from the other parent will bear the extra expense.
A judge can also order a parent to contribute to additional expenses related to the children that are not part of guideline child support. There are three basic types of discretionary add-on expenses as follows:
- Costs related to the educational or other special needs of the children;
- Travel expenses for visitation; and
- Extracurricular activities.
Educational expenses such as private school tuition and tutoring often require agreement between the parents. In some cases, if a child has been attending private school for several years, assuming that it is financially feasible, the judge may find that it is in the child’s best interests to continue attending at joint cost, even over one parent’s objection. Preschool is probably one of the more commonly divided discretionary educational expenses.
Parents do not have an automatic legal obligation to pay for or contribute to college tuition. College tuition, contributions to 529 college savings accounts, UTMA accounts, or UGMA accounts are generally not ordered except by agreement between the parents. If parents reach a formal agreement to divide college expenses, it is important to understand that this agreement becomes an enforceable court order that is not easy to change.
If parents stipulate (agree) to divide college expenses pursuant to court order, they need to be careful not to give up their rights as parents. Many well-intentioned people enter into these court orders only to regret their decision. What happens if the child fails to graduate in four years? What if the child earns less than adequate grades? What happens if the child chooses an expensive private university that neither parent can afford? Or if the child selects a major that the parents disagree with? It is important that parents craft parameters regarding their agreement to contribute to their children’s college educations based on their finances and personal values.
For parents who live far away from each other, there are added costs involved with visitation. Transportation costs can become very expensive, especially if the children are young and cannot fly without an adult. Although technically a discretionary expense, it is very common for these costs to be equally divided between the parents. This can be a very unwelcome surprise, especially when the costs are due to one parent unilaterally moving out of state.
If transportation costs are to be divided (whether equally or unequally), it is very important to clearly define what a transportation cost is and what the limits are regarding the expenses. For example, one parent may insist on first class airfare, or another parent may assume that transportation includes hotel and rental car costs. Other parents bicker about when to purchase tickets, since savings are generally possible when flights are booked well in advance of the trip. For these potential conflicts, a good solution regarding airfare is for each parent to be responsible for a one-way ticket or to take turns paying for flights. Either one creates a situation where the parents are not financially dependent on the other for a flight.
Finally, while extracurricular activities are not mentioned in Family Code Section 4062 as a discretionary add-on expense, they are often considered by judges as a discretionary add-on expense. In general, it is fairly standard that a judge will order the equal division of all extracurricular activity expenses agreed upon by the parents.
Step 4: When does Child Support begin?
Under California law, child support begins when a parent formally seeks it by opening up a case. There are a number of types of cases that allow for child support orders, including:
- Dissolution of Marriage (Divorce);
- Dissolution of Domestic Partnership;
- Legal Separation;
- Petition to Establish Parental Relationship (paternity);
- Petition for Custody and Support of Minor Children;
- Request for Domestic Violence Restraining Order; or
- California Department of Child Support Services action through a local child support agency.
In addition to opening up a case, a parent must also file a formal request for child support, typically using Judicial Council form FL-300, a Request for Order. If a parent opens up a case through the local child support agency, the agency will file a motion to establish support. If a parent requests a domestic violence restraining order, that parent can request child support at the same time. If child support is requested, an Income and Expense Declaration, Judicial Council form FL-150, is required.
A Request for Order should briefly and clearly state what is being requested from the judge. Many people forget that they are requesting orders. Instead of asking the judge for some specific relief, they instead complain about the other parent and write about problems that are not relevant to the issue of child support. For child support, the judge needs to know the following:
- What is being requested (guideline or non-guideline child support, mandatory add-on expenses, and/or discretionary add-on expenses);
- Whether this is an initial child support order, or a request to modify the current child support order;
- Timeshare or the actual current custodial schedule;
- Income information;
- If there is a preference to how child support is paid (through garnishing the other parent’s wages, an Electronic Funds Transfer (EFT), by check, or some other method);
- Whether or not there are any child support arrears;
- If health insurance is available through employment;
- Whether there is a preference as to which parent claims the child as a dependent for tax purposes;
- If add-on expenses are being requested, the types and amounts of those expenses, along with proof; and
- If there are special circumstances that might allow a judge to deviate from guideline support.
If you are modifying a child support order, you must attach a copy of the current order to the back of your Request for Order.
It is vital to properly complete the paperwork in requesting child support, especially with regards to an Income and Expense Declaration. Failing to do so will cause delays and a possible denial of the parent’s request for support. It also prevents the court from accurately calculating guideline child support. This may result in an unfairly high or low amount of child support, neither of which benefits the child.
Many people ignore the fact that an Income and Expense Declaration is filed under penalty of perjury. This is an important document, or pleading, that judges rely on heavily in awarding child support. Mistakes, omissions, and flat-out lies will have a serious impact on child support. Some of the most common obvious issues with Income and Expense Declarations are as follows:
- Forgetting to provide two months’ worth of pay stubs or Schedule C documents;
- Omitting overtime, bonus, commission, or other income above base salary or base hourly rates;
- Listing expenses that exceed income; and
- Failing to complete every section.
Think of an Income and Expense Declaration as a picture of your financial situation. It needs to be accurate, easy to understand, and clear. Giving the judge a blurry picture will prevent him or her from issuing a correct and fair child support order. For assistance, please watch our video on preparing an Income and Expense Declaration.
When you file the Request for Order with the court clerk, you will be scheduled for a hearing date. The Request for Order and Income and Expense Declaration, along with a blank Responsive Declaration and blank Income and Expense Declaration, must be served on the other parent a minimum of 16 court days before the hearing. The method of service will vary, depending on the situation, but the deadline is universal.
The other parent has up until nine court days before the scheduled hearing to respond to the request for child support and provide a copy of his or her Income and Expense Declaration. It is important to respond to a motion for child support in order to give the judge the opportunity to hear both sides of the story and respond to the comments made by the other parent. The judge needs to know the following information from the responding party:
- Whether or not there is agreement with what is being requested (guideline or non-guideline child support, mandatory add-on expenses, and/or discretionary add-on expenses);
- If there is no agreement, what the actual disputes are;
- Timeshare or the actual current custodial schedule;
- Income information;
- If there is a preference to how child support is paid;
- Whether or not there are any child support arrears;
- If health insurance is available through employment;
- Whether there is a preference as to which parent claims the child as a dependent for tax purposes;
- If add-on expenses are being requested, whether or not the responding parent agrees with the other parent’s accounting of the types and amounts of those expenses, along with proof; and
- If there are special circumstances that might allow a judge to deviate from guideline support.
At the hearing, the judge will review each parent’s paperwork, listen to each person’s testimony, and then calculate child support based on timeshare and income using a computer software program like DissoMaster™. The judge will also issue orders for maintaining the children on one or both parent’s health insurance, the division of childcare and uninsured medical expenses, and other similar orders. Child support will initially be ordered on the date of your hearing, assuming both you and the other parent have filed the correct papers; however, the paying parent may be surprised to learn that support can start earlier than the date of the hearing. This is due to something called “retroactivity,” or “retroactive support.”
Retroactive support means that child support can begin as early as the date the case initially started. In general, child support is retroactive to either the date the first official request for child support was filed, or the date the request for child support was properly served on the other parent. What that means is that a parent who is obligated to pay child support can find himself or herself owing several months’ worth of child support at the first hearing. This debt is called an “arrearage.”
Child support arrears collect interest and must be repaid. As such, payors of child support should be very careful not to play games, thinking that delaying an order of child support means avoiding a child support obligation. The obligation can be delayed, but the delay will create a substantial arrearage. Child support arrears cannot be discharged in bankruptcy or otherwise forgiven without the other parent’s agreement. Arrears never expire and can continue to be collected even after ongoing child support ends.
Step 5: When does Child Support end?
In most situations, child support legally ends upon the first of the following:
- The child reaches the age of 18 and graduates from high school, whichever is later;
- The child reaches the age of 19 and is still a full-time high school student, whichever is earlier;
- The child marries;
- The child joins the military;
- The child is legally emancipated; or
- The child dies.
In certain circumstances, a child can be found to be incapacitated from earning a living and without sufficient means. If an adult child has a severe mental or physical disability that prevents the child from being able to work or obtain work, that child may be found as incapacitated. In those cases, the law requires both parents to equally share the responsibility of continuing to support their incapacitated child.
Child support can extend past ordinary date of termination if the parents agree to continue ongoing support. Many parents who have children who attend college but continue to live with the other parent will agree to pay child support in recognition of the ongoing expenses associated with housing and supporting the adult child. Other parents will agree to extend health insurance or directly pay for their adult child’s college or living expenses.
It is very important to recognize that the ability to enforce child support arrears never expires. A child support order can still be enforced long after the ability for a judge to issue ongoing child support ends. In many legal situations, there is something called a Statute of Limitations, which essentially means that in order to enforce a right, a person must do so in a certain amount of time. This concept does not exist with the issue of child support.
Conversely, there is also an ability to collect all overpayments of child support. A number of child support payors unknowingly continue paying child support even after they are no longer obligated by law to do so. If the recipient of child support continues collecting the child support, that person will be required to reimburse the payor when the mistake is discovered. It is important for both recipients and payors of child support to keep careful track of all payments as well as when child support legally ends.
Step 6: How can Child Support be modified?
There are three general ways to characterize California child support: 1) guideline child support; 2) below-guideline child support; and 3) above-guideline child support. Modifying child support starts with knowing what kind of child support order exists.
In order to modify guideline child support, a “change of circumstances” must be established by the person seeking to change the support order. In other words, that parent must show that there has been a change in at least one person’s situation that would warrant a change in the order. Examples of changes include but are not limited to the following:
- A parent’s income has increased;
- One parent’s income has decreased (including a loss of job or disability);
- A parent’s net income (after tax income) has changed (including a different tax filing status, an increase or decrease in dependents, and modifications to tax deductions);
- A change in the visitation schedule that alters the amount of time each parent spends with the child, i.e. timeshare;
- A change in the visitation schedule that alters the cost of transportation. For example, one parent moves out of state;
- A parent applies for or stops receiving State Aid;
- The child’s expenses have changed (including childcare, education, and other add-on expenses);
- A change in the available health insurance to cover the child;
- One parent’s failure to comply with a seek work order or to obtain full-time employment commensurate with his or her earning capacity; and
- A parent has been incarcerated.
To modify an above-guideline child support order, a parent must also demonstrate a change of circumstances; however, the change must specifically address why the above-guideline amount of child support is no longer appropriate. This can be tricky, as many above-guideline child support orders are crafted as part of a number of compromises and other orders. For example, if a parent agrees to pay above-guideline child support in exchange for a reduction of spousal support, that parent will have to justify why lowering child support but not increasing spousal support is appropriate.
For below-guideline child support orders, no change of circumstances is needed to modify support to an actual guideline child support amount. This is because guideline child support is always considered to be presumptively correct.
No matter what type of child support order a parent has, a child support order cannot be modified without filing a Request for Order, Judicial Council form FL-300, as well as an Income and Expense Declaration, Judicial Council form FL-150. The request should specifically explain the type of child support order currently in effect (guideline, above-guideline, or below-guideline), and describe what has changed since the last order, unless the order is below-guideline. A copy of the prior order should be attached to the motion. Note that child support cannot be modified until a request has been filed and served.
If the case has been assigned to the Local Child Support Agency (LCSA), typically referred to as the Department of Child Support Services (DCSS), a parent can ask the department for assistance in modifying the order. This can be done by contacting the LCSA and requesting “a review and adjustment” of the child support order. If it is possible to reach an agreement with the other parent, the LCSA can facilitate the process to formalizing the agreement and turning it into a modified court order.
The LCSA has thousands of cases, so it can take up to 180 days to complete the review and adjustment process. Therefore, a parent may ultimately decide that it is a better idea to file papers to modify child support without the assistance of the LCSA. This is due to a parent not wanting to wait a potentially extended period of time to modify the child support order.
Many people are disappointed to learn that child support has severe limits on retroactivity. Parents often wait, to their detriment, to try to modify child support. Common reasons include:
- Thinking the drop in income is temporary;
- Being afraid to go back to court;
- Forgetting to change the order due to the other stressors associated with the loss of income;
- Mistakenly believing that child support can be modified “anytime”;
- Relying on the other parent’s agreement to informally change the child support;
- Failing to prioritize child support; and
- Not knowing what to do and not asking for help.
Pursuant to Family Code Section 3653, the earliest a child support order can be modified is the date of filing of a motion to change it. There are no exceptions to this law. Therefore, regardless of intentions or circumstances, a judge cannot modify the amount of child support until a parent formally requests that change. Most family law judges have heard cases where one parent has deliberately misled the other parent or taken advantage of the situation, but unfortunately, there is nothing the judge can do to go back in time. That means that the child support order remains in effect until it is modified. Often times this creates a financial hardship for the payor of child support. Do not wait to modify your child support orders.
Step 7: How is Child Support paid?
For all child support orders, a wage assignment must be issued. A wage assignment, also known as a wage garnishment order, directs an employer to withhold child support from the child support payor’s wages. Once a wage assignment order is filed, it can either be sent to the employer, or “stayed.” Staying a wage assignment means to put it on hold.
Staying a wage assignment can be done by agreement between the parents and typically only occurs when the LCSA is not actively involved in enforcing the child support orders. If the wage assignment is stayed, the parents will need to work out an agreement on the method and frequency of child support payments.
Sometimes a wage assignment is impractical or unfeasible. For example, a self-employed payor of child support cannot have his or her wages garnished by a third party employer. Individuals who do not receive a steady source of income may not always earn enough money to be garnished. In those situations, it is important for parents to work together to establish a mutually agreeable alternative to a wage assignment. Not paying child support carries serious consequences, and as a result, it is both parents’ best interests to ensure that child support is paid regularly, timely, and in a way that can be documented by both parties.
One of the most practical and common ways of voluntarily paying child support is through an Electronic Funds Transfer (EFT). An EFT is the electronic transfer of funds from one bank account to another. This allows both the payor and the recipient of child support to be able to keep careful records of the payments. Other methods of payment include personal checks, money orders, or an automatic “bill pay.” In general, paying in cash is never a good idea, as it is very difficult to track.
Some parents believe that buying groceries or supplies equivalent to the amount of child support is a clever way of following the law and ensuring that their money goes directly to the children. These parents are bitterly disappointed when they learn they receive no credit for these “payments.” Similarly, gift cards, payments towards a child’s cell phone bill, or even money given to the child are not considered. Child support must be paid directly to the parent in an actual form of currency.
Step 8: How is a Child Support order enforced?
In general, a wage assignment can be an effective tool for enforcing child support, as the payor never has control or access to the money. The employer takes the support directly from the payor’s check and is not allowed to change this arrangement without a modified order. As previously discussed however, there are times when a wage assignment is impractical, and a parent must turn to other methods for enforcement.
The LCSA can assist with enforcement. This agency has a number of enforcement techniques that are not available to private attorneys or individuals. With the LCSA’s assistance, common enforcement methods include but are not limited the following:
- Levying a bank account
- Intercepting a State or Federal tax refund
- Suspending a driver’s license
- Denying an application for either a renewed or new passport
- Suspending a state-issued license for professionals such as: contractors, physicians, lawyers, cosmetologists, teachers, realtors, or brokers
- Suspending a business license
- Garnishing a personal injury settlement or workers’ compensation award
- Recording a real property lien
- Issuing a writ of execution to seize personal assets
- Negatively impacting credit
Another effective enforcement tool is through interest. Interest automatically accrues at the legal rate of 10% per year for all unpaid amounts of child support. The LCSA can assist with tracking and calculating interest. If unpaid for an extended period of time, the accumulated amount of interest can result in significantly increasing the child support arrears and create a situation where a parent is unable to pay off the arrears.
One additional enforcement method is through contempt. Contempt is a quasi-criminal proceeding that is a powerful, though less commonly used enforcement remedy. Since it is quasi-criminal, the person filing for contempt must adhere to very strict procedures. Each monthly failure to pay child support can be considered a separate count of contempt. Each count can be separately punished by fine, community service, or jail time. Contempt charges for failure to pay child support must be brought within three years from the date the support was due.
In order to find a person in contempt, certain elements must be proven “beyond a reasonable doubt.” Beyond a reasonable doubt means there is no other reasonable conclusion other than that the person is guilty. Each one of these elements must exist in order for a person to be found in contempt:
- There must be a valid court order. A verbal or even written agreement is not enough. You must have a validly filed court order. Vague court orders that are open to interpretation are difficult to enforce in contempt proceedings. For child support orders, having a specific order is generally not difficult to obtain, as the monthly amount should be set.
- There must be knowledge of the court order. A person cannot be found guilty unless he or she knew that an order existed. If a parent does not know about the child support obligation, there is no way that person can comply with the order. “Knowledge” means that the accused received a copy of the order or was present in court when the order was made. Failing to understand the order or forgetting that the order existed are generally not defenses.
- There must be a willful violation of the court order. The most common defense against contempt charges for failure to pay child support is an inability to pay. While this can be a defense, it is very fact-specific and complex. Additionally, it is important to note that a parent’s child support obligation is considered paramount. An “inability” to pay child support because of a mortgage payment is not going to be considered as a legal defense.
When a parent files for contempt against the other, the accused person must be personally served with an Order to Show Cause (OSC) and Affidavit for Contempt, Judicial Council Form FL-410. For child support order violations, an Affidavit of Facts Constituting Contempt, Judicial Council Form FL-411 must also be attached. The parent alleging contempt must carefully put down each date a child support payment should have been made, the amount that should have been paid, the amount actually paid, if any, the date and type of order requiring the other parent to pay child support, and the name of the person who was to receive that child support. There should also be a total amount of child support owed. Each missed payment is a separate count of contempt. Therefore, it is not uncommon for a parent to charge the other with dozens of counts of contempt.
At the first hearing, the accused is given the same rights afforded to a criminal defendant as follows:
- The right to have formal notification of the charges brought against the accused;
- The right to an attorney, and if the accused is indigent, the court can appoint a public defender for that person at no or low-cost;
- The right to a speedy trial; and
- Depending on the number of charges, the right to a jury trial.
The accused can expect to be arraigned at the first hearing, which means that he or she will have a chance to enter a plea of “guilty” or “not guilty” to the charges being brought against him or her. Due to the complexities of prosecuting a contempt case, this method of enforcement is generally best with the assistance of a private attorney or the LCSA.
Contempt is not always the best method for enforcing a child support obligation. For example, if a parent is incarcerated after contempt proceedings, it will be impossible for that parent to work and pay off his support obligation. Requiring extensive community service can similarly impact the parent’s ability to work and at the very least, does not earn income. Tacking on fines to child support arrears provides no immediate relief. It is an enforcement option that should be considered and weighed carefully.
Step 9: What is the State Disbursement Unit?
In 1996, the Federal Personal Responsibility and Work Reconciliation Act (PRWORA) mandated that each state must create a centralized location to process all child support payments. The result for California was to create a centralized location called the California State Disbursement Unit (SDU). The SDU collects and disburses court-ordered child support payments. These payments include payments made by wage withholding for private cases that are not being enforced by a local child support agency.
As of 2006, all child support payments made by wage assignments must go through the SDU. This central payment processing center is devoted solely to the receipt and disbursement of child support payments. Upon receipt of a child support payment, the SDU will record the date and the amount of the payment and, if appropriate, forward the money to the other parent in a matter of days.
The purpose of establishing the SDU was to enhance efficiency and improve customer service. The SDU provides cost effective and convenient centralized processing for the collection and distribution of child support payments for all California Local Child Support Agencies (LCSAs). For the obligor parent, the SDU provides multiple payment options, including check, debit, credit card, cashier’s checks, money orders, and automatically scheduled withdrawals.
For the obligee parent, the SDU provides the option to receive payments via direct deposit, or Electronic Payment Card (EPC), and payment processing within two working days of receipt. Both parents are provided with 24-hour access to account information online and by phone. This centralized system can reduce future conflict regarding whether or not child support payments were made and/or received.
The contact information for the SDU is as follows:
California State Disbursement Unit
PO Box 989067
West Sacramento, CA 95789-9067
For individuals choosing to pay child support to the SDU via check or money order, it is generally recommended to mail payment on or before the 20th of each month to ensure its receipt by the 1st of the following month.
Payments can also be made online through the SDU website, or by calling 1-866-901-3212.
Step 10: What are the exceptions to guideline Child Support?
California law presumes that guideline child support calculations are correct and should be used in child support orders. In certain cases, however, parents can agree to an amount that “deviates,” or is different, from the guideline amount. In order for there to be a child support amount that is less than the California State guidelines (also known as “below-guideline child support”), the following conditions must be met:
- Both parents must be aware of their rights to guideline child support and understand that guideline child support is the presumptively correct amount;
- The agreement is made without coercion or duress;
- The amount the parents agree on must be in the child or children’s best interests;
- Both parents must agree that the needs of the children will be met by the amount of agreed-upon child support; and
- Neither parent is receiving public assistance, and there are no applications pending for public assistance.
Unless both parents sign a declaration affirming the five conditions above, or answer the questions under penalty of perjury “on the record” during a court hearing, a judge cannot honor the parties’ agreement to deviate from guideline support and enter a below-guideline amount.
There are other times when a parent will agree to pay more than what the law requires of him or her. This is called “above-guideline child support.” In order for parents to agree to above-guideline child, they both need to know what the actual guideline amount is and agree to the higher amount. In the future, if one parent (usually the payor) wants to modify above-guideline child support to the traditional guideline number, that parent must show that there has been a change of circumstances since he or she agreed to the above-guideline amount.
Aside from an agreement, a judge can occasionally deviate from guideline child support, either by increasing or decreasing the calculated amount. These situations are very limited, and it is very difficult prevail on a request to deviate from guideline child support if there is no mutual agreement to do so. If a judge orders an amount for child support that is inconsistent from the statement uniform guideline formula, the judge must state, either in writing or on the court record, the following:
- The amount of guideline child support;
- The reason or reasons why the judge is deviating from guideline child support; and
- How the ordered amount of child support is in the best interests of the child or children.
Upon request, the judge must also specifically state each parent’s net monthly disposable income, the actual federal income tax filing status of each parent (single, married filing jointly, head of household, etc.), the gross income deductions of each parent, and the approximate timeshare.
In order to rebut the presumption that guideline child support is correct, a parent must establish at least one of the following situations:
- The sale of the former family home has been deferred pursuant to a separate court order and the fair market rental value of the property is more than the actual carrying costs of maintaining the home (i.e. mortgage, property taxes, and insurance). If this factor applies, support can be reduced or increased by the difference between the fair market rental value and the home expenses.
- The child support payor has an “extraordinarily high income” and the guideline amount of child support would exceed the needs of the child or children. This scenario occurs most often with extremely successful professional sports players, celebrities, and other individuals in the very top income brackets.
- A parent is not contributing to the needs of the child or children at a level commensurate with that party’s custodial time.
- Using a guideline support formula would be unjust or inappropriate due to very special and particular circumstances including but not limited to the following:
- There are multiple children on different time-sharing schedules. Oftentimes parents who have children spanning a large age range will have a visitation schedule that is unique to each child’s needs. For example, if parents have two teenagers and one infant, and the high earning parent has the majority of the timeshare with the teenagers, while the low earning parent has the majority of time with the infant, this can result in a guideline amount of child support that does not take these unique factors into consideration.;
- The parents enjoy a substantially equal timeshare but one parent has a much lower or higher percentage of income used for housing that the other parent. An example is if Dad lives with his parents and has no housing expenses, while Mom rents a house at $3,500.00 per month.
- The children have special medical or other needs. Unfortunately, some children suffer from long term and devastating medical conditions that result in extremely high medical expenses. Other children require expensive and extensive educational or therapeutic services. In these situations, a judge can order an above guideline amount to reflect the extraordinary costs of raising a particular child or children.
- A child has more than two parents. This is a relatively newer area of law where California allows for three legal parents. The current state guideline formula is based on an assumption that a child only has two legal parents. Therefore, if a child has three parents, the guideline formula does not take into account all three parents’ incomes or the balance of timeshare between the three of them.
No two child support cases are the same. Some of the questions listed in this guide will relate to your specific situation. Some of the answers in this guide likely feel unfair to you and provides you with disappointing information. It is vital that you take the right steps for you and your family in order to ensure the correct outcome. We hope that you take care of yourself during this difficult time in your life. In order to better understand the child support process and how it relates to you, please take the next step by contacting us.