Divorcing couples often have a much easier time settling on child support payments than spousal support. There are two reasons for this: (1) most parents acknowledge an obligation to support their children, and (2) California courts embrace a formulaic approach to calculating child support. In short, obtaining the formula-generated figure for child support often minimizes disagreement between spouses.
A court’s top concern in any divorce is the welfare of the children involved. The needs of the parents will always be secondary to the needs of the children, and the inflexible nature of child support payments reflects this concern.
Here are some basic things you should know about child support in California:
- A judge will typically honor the child support figure generated by the California-mandated support formula.
- Child support is based almost entirely on the parents’ incomes. Expenses are not considered.
- Child support payments continue until a child reaches majority (i.e., turns 18).
- Child support may be modified upon a change in circumstances, including an increase in income of either spouse, or a change in the child’s custodial arrangement.
- Child support is tax neutral, meaning it is neither taxed as income to the receiving spouse nor deductible by the paying spouse.
Child Support, Practically Speaking
There is no greater obligation in life than the duty to support our children. This principle is woven into the very nature of our existence as human beings. Children take years to reach adulthood, and they require love and support to make the journey a smooth one. Thankfully, most parents intuitively understand and embrace this concept. The California legislature has curtailed extensive battling over child support even more by requiring the courts to apply a rigid formula when calculating the appropriate amount of support in a particular case.
For couples engaged in mediation who are committed to divorcing peacefully, child support doesn’t require a great deal of discussion. The amount of support a judge would mandate is clear, and any deviation from that figure is rare. However, divorcing spouses with substantially different salaries can tap into a great gift from the State of California and the Internal Revenue Service—family support. While the concept of family support is explained in much greater detail in the previous chapter, it’s worth noting that the concept represents a fine example of how some cooperative spouses can save a great deal of money in taxes by reaching an agreement outside of court.
The Legal Framework for Child Support
Subject to the requirements noted below, a divorcing couple may agree on an amount of child support that differs from the number that is generated by the statutory formula. However, the couple should be aware that if one party becomes dissatisfied with the child support figure, he or she can petition the court to modify support. The result will almost invariably be an adjustment to the level specified by the state-mandated formula.
|Those who detest arithmetic may struggle with the next section. Keep in mind that a mediator or divorce attorney who has access to support software can easily come up with an accurate child support figure for you. Doing so is simply a matter of plugging your information into a computer program.|
For those mathematically-minded individuals who want to truly understand how this works, here’s the formula, as set forth in Section 4055 of the California Family Code :
|CS = K (HN – (H%)(TN))|
|where “CS” = Child support amount|
|“K” = Amount of both parents’ income to be allocated for child support (see below)|
|“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|
|AndTN = Total net monthly disposable income of both parties|
Calculating K takes a bit of work. First, you must pick the appropriate formula from the first table on the next page. Then, you multiply the result obtained from the first formula by the appropriate formula from the second table below.
|K = 1 + H% (if H% is less than or equal to 50%); or K = 2 – H% (if H% is greater than 50%)|
The result is multiplied by the appropriate fraction from the table below to obtain K:
|Total Net Disposable Income Per Month||Fraction|
|$0-800||0.20 + TN/16,000|
|$6,667-10,000||0.10 + 1,000/TN|
|Over $10,000||0.12 + 800/TN|
After K has been calculated, the rest of the formula falls into place. However, if a couple has more than one child, the total child support figure (CS) must be multiplied by the following fraction:
|Number of Children||Fraction|
This seems like a mess, doesn’t it? It’s not quite as complicated as it first appears and, remember, an attorney can easily generate this figure for you. Note that the rules for calculating net disposable income are set forth in Section 4059 and 4060 of the California Family Code (Exhibit B in the Appendix). For those dedicated souls who really want to understand how this all works, please consider the following examples:
The Kenneys have two children. Tom Kenney’s net monthly disposable income (i.e., after-tax income) is $2,500. Claire Kenney’s net monthly disposable income is $6,000. They have agreed upon a 50/50 custody split for their kids. Child support is calculated as follows:
TN = $2,500 (Tom’s net monthly income) + $6,000 (Claire’s net monthly income)
TN = $8,500
H = 50% (or for the purposes of the formulas, the fraction 0.5)
HN = $6,000 (Claire’s net monthly income)
K = (1 + H%)(0.10 + 1,000/TN)
K = (1 + 0.5)(0.10 + 1,000/8,500)
K = 1.5 (0.2176)
K = 0.3264
Now plugging K into the child support formula, we have:
CS = K (HN – (H%)(TN))
CS = .3264 ($6,000 – (0.5)($8,500))
CS = .3264 ($1,750)
CS = $571.20
(But don’t forget that because they have two children, CS must be multiplied by 1.6)
Therefore, CS = 1.6 x $571.20
CS = $914
In short, a judge would almost always order Claire to pay Tom $914 per month in child support.
The Penas have three children. Felipe Pena’s net monthly disposable income is $11,000. Tania Pena is a homemaker. They have agreed upon an 80/20 custody split for the kids, with Tania being the primary caretaker. Child support is calculated as follows:
TN = $11,000 (Felipe’s net monthly income, which is the total household income)
H = 20% or 0.20 (Felipe’s custodial percentage)
HN = $11,000 (Felipe’s net monthly income)
K = (1 + H%)(0.12 + 800/TN)
K = (1 + 0.20)(0.12 + 800/11,000)
K = 0.23124
Now plugging K into the child support formula, we have:
CS = K (HN – (H%)(TN))
CS = 0.23124 ($11,000 – (0.2)($11,000))
CS = 0.23124 ($8,800)
CS = $2,034.91
(In this case, the Penas have three children, so CS must be multiplied by 2)
Therefore, CS = 2 x $2,034.91
CS = $4,070
In short, a judge would almost always order Felipe to pay Tania $4,070 per month in child support. Note that in a situation like the Penas’, lumping spousal support and child support together as undifferentiated “family support” would provide an enormous tax advantage. (See the end of the previous chapter for more detail).
The Rosellis have one child. Anthony Roselli’s net monthly disposable income is $2,000. Tricia Roselli’s net monthly disposable income is $1,000. They have agreed upon 70/30 custody for the kids, with Tricia being the primary custodian. Child support is calculated as follows:
TN = $2,000 (Anthony’s net monthly income) + $1,000 (Tricia’s net monthly income)
TN = $3,000
H = 30% or 0.30 (Anthony’s custodial percentage)
HN = $2,000 (Anthony’s net monthly income)
K = (1 + H%)(0.25) [Note: 0.25 comes from the income table]
K = (1.3)(0.25)
K = 0.325
Now plugging K into the child support formula, we have:
CS = K (HN – (H%)(TN))
CS = 0.325 ($2,000 – (0.3)($3,000))
CS = 0.325 ($1,100)
CS = $358
In short, a judge would almost always order Anthony to pay Tricia $358 per month in child support.
A child support order in California normally ends when the child turns 18. However, if the child is 18 but still resides at home, attends high school, and is not self-supporting, the requirement to pay child support ends when the child graduates from high school or turns 19, whichever comes first.
Section 3587 of the California Family Code (Exhibit B in the Appendix) states that a court has the authority to approve an agreement specifying the payment of child support beyond the child’s 18th birthday. This is not unusual. In fact, you can agree to continue to pay child support for a set number of years after your child graduates from high school, which would almost certainly be tied to the goal of having your child obtain a bachelor’s degree. Four or five years of support after graduation from high school (or until age 22 or 23) is a reasonable time period to obtain a bachelor’s degree in most cases.
Agreeing Upon a Different Amount of Child Support
As noted earlier, you can always agree upon an amount of child support that differs from the figure specified by the support formula. However, before a judge can approve such an agreement, both of you must declare the following under oath or in writing:
- You both know your rights under California child support law.
- Neither of you have been subjected to coercion or duress.
- The support agreed upon is in the best interest of your minor children and will adequately meet their needs.
- The minor children are not on welfare and no application for welfare is pending.
Again, keep in mind that while you can agree on a sum below the amount dictated by the support formula, the parent receiving support can request the court to increase the support up to the formula amount without showing any change in circumstances. This is in direct contrast with a petition to modify spousal support, which requires that the parent petitioning for a different amount of support demonstrate a change in circumstances.
The Rare Exception – Court Ordered Support that Departs from the “Presumed Correct” Figure
A judge may depart from the support figure generated by a support calculator, but to do so requires the judge to find an adequate “rebuttal factor.” Given the caseload faced by most courts, that is not a common occurrence. Nevertheless, “rebuttal factors” include the following:
- The paying parent’s income is so high that the amount of support suggested by the support calculator would exceed the children’s needs.
- The custodial parent has the benefit of living in a residence that is subject to a mortgage payment that is lower than the fair market rental value of the residence.
- A parent fails to contribute to the children’s needs commensurate with that parent’s allotment of time with the child.
- Application of the support formula is unjust due to special circumstances.
Use of the first potential rebuttal factor—that the paying parent’s income is exceedingly high and therefore the formula generates an overly generous figure—requires that the paying parent make a very tidy income. There is no guidance in the California Family Code regarding what exactly constitutes a “very high income.” The answer seems to vary from county to county and from judge to judge. In Beverly Hills, the cost of living is incredibly high, and a judge is unlikely to find someone who makes less than $80,000 per month a very high earner. Likewise, certain areas of the San Francisco Bay Area are subject to a comparably high threshold.
Most importantly, explaining how a child support figure that is less than the calculated amount is in the best interests of the children requires a bit of work—and judges would often rather spend their time elsewhere. Judges are reluctant to depart from the state-mandated child support formula not only because making the required factual findings takes valuable time, but also because the use of “rebuttal factors” places the judge at risk of reversal—something most judges would rather avoid. In short, persuading a judge to depart from California’s child support formula is possible, but difficult.
New Spouse Income
Prior to 1994, it was widely accepted that a court could consider the income of a new spouse when computing child support payments. For example, if a father made $30,000 a year and a mother made $30,000 and custody was shared equally, no child support payments were required. (The same is true today). However, prior to 1994, if the woman subsequently married a man who made $500,000 a year, half of the new husband’s income was imputed to her. The net result was that the woman owed her former husband significant child support payments.
Now, a court is expressly prohibited from considering the income of a new spouse when setting child support unless doing so is necessary to avoid “severe and extreme hardship to the children.” An example of “severe and extreme hardship” might involve two parents who both earn wages that put them below the poverty level. When one of the parents remarries someone with a sizeable income, the court could declare that apportioning a percentage of the new spouse’s income to child support is necessary to raise the children from the severe and extreme hardship associated with an impoverished lifestyle.
Other Child-Rearing Expenses
For some divorcing couples, the formula-generated child support figure is only the beginning. A judge may order other expenses paid in addition to the calculated amount of child support, including childcare expenses, private school tuition, health care expenses, and travel expenses incurred by the non-custodial parent.
Childcare. Childcare can be extremely expensive. Costs of up to $1,000 per month are not uncommon, and this expense is piled on top of the calculated child support figure. The question that most concerns couples is this: Who pays? The answer depends on the ratio of the spouses’ net spendable incomes. Typically, the child support and spousal support a higher-earning spouse pays to the recipient spouse is sufficient to equalize their income to at least a limited extent. In that case, a judge will order that the cost of care be borne equally by both spouses. However, when one spouse has a much higher net spendable income than the other, the cost of care may be allocated proportionally.
Private school. If your children attend private school, a judge could order the payment of private school tuition on top of the calculated child support figure. Unlike families on the East Coast, Californian families tend to be more public-school oriented. If you live in a relatively prosperous neighborhood teeming with highly-educated parents, chances are the public schools are strong. Nevertheless, you may want to send your child to a school with a certain religious tradition, or perhaps you happen to live in a district in which the public schools are notoriously poor.
If both you and your spouse can agree that your children should attend a private school, it’s likely that the two of you can negotiate a fair deal regarding how the cost of tuition is shared. However, if you simply can’t come to an agreement, a judge will probably use the following factors to determine if a child should attend private school, and if so, who should pay: (1) the ability of the parties to pay for tuition, (2) the cost of the school, (3) the educational needs of the child, (4) the length of time the child has already attended private school, and (5) the reason why one parent wants the child to attend private school. As you might imagine, a judge is much more likely to order that a child continue his or her education at private school than start fresh at a new school.
Health care. The law requires that either or both parents provide health insurance for their children if it is available at no or reasonable cost. An employer-sponsored plan is considered reasonable in cost. In the absence of this option, the cost of health care is split equally unless a judge determines it is more appropriate to allocate the cost according to income.
Travel expenses. In a case decided in 1996, the California Supreme Court held that when a party moves away or relocates, he or she can be ordered to pay all of the travel costs associated with visitation by the spouse who stayed behind.
Of course, if you approach your divorce like a grownup, the thought of hiding income will never cross your mind. Unfortunately, in a desperate bid to limit support payments, some parties do exactly that. Hiding income is difficult when a spouse is employed by a mid-sized to large company. However, if a spouse owns his or her own business or a professional practice, there are myriad opportunities to game the system and underreport income. Dealing in cash, hiding surplus funds inside a corporation instead of taking a full salary, and paying personal expenses out of the business coffers are just a few of the techniques desperate litigants will take to reduce the appearance of income. This concept is explored in more detail in the chapter on asset division. That said, be warned: Judges are not amused by this gamesmanship and will respond accordingly. Furthermore, the attorney and expert fees associated with playing these games almost always exceeds any reduction in support payments.
In some cases, a spouse experiences a sudden dip in income immediately prior to divorce. In some instances this is a result of being fired through no real fault of the spouse. The stress of a divorce does take its toll, and a spouse’s job performance may suffer accordingly. In other cases, however, the spouse is simply trying to reduce the pool of available income a judge may consider when calculating support. Demonstrating to a judge that it was the latter motivation and not the former that caused the job loss is time-consuming and quite expensive, but it can be done. Generally speaking, if you want to show that your spouse is not working to capacity, you will have to hire an expert in job placement who will subsequently evaluate the parent who ostensibly isn’t earning enough. The expert will use his or her knowledge of the local job market for a particular skill set to determine what the spouse could reasonably expect to earn. The spouse who suffered a loss of income may be required to show a good faith effort to land a new job, and that doesn’t just mean sending out hundreds of resumes. It means face-to-face interviews with potential employers. Given the high cost of hiring a job placement expert, attempting to show that a spouse isn’t earning to capacity might not be a cost-effective exercise, but it may be necessary if you suspect your spouse is intentionally reducing his or her income.