Child Support   

Some Information About Child Support

Child support is the amount of money that the court orders one parent to pay the other parent every month for the support of the child(ren). California has a formula (called a “guideline”) for figuring out how much child support should be paid in all cases. Click here to learn more about how child support is calculated.

Child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can’t support themselves. Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting. Click here to learn more about when child support ends.

You can ask the judge to make a child support order when you:

• Get a divorce, legal separation, or annulment;
• Establish parentage; or
• Get a domestic violence restraining order.

Parents who have signed a voluntary declaration of paternity, OR are married and don’t want to get legally separated or divorced can also ask for a child support order when they file a Petition for Custody and Support of Minor Children (form FL-260).

Either parent can later ask the judge to change the amount if the situation changes. Click here for forms and instructions to help you change a support order. Parents can also ask the judge for help collecting (enforcing) a support order. Click here for forms and instructions to help you enforce a support order.

WHAT IS CHILD SUPPORT? Child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can’t support themselves. Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting. Click here to learn more about when child support ends.

WHAT IS A CHILD SUPPORT ORDER? A Child Support Order is a document from a court that states (a) when, (b) how often, and (c) how much a parent is to pay for child support. A Child Support Order is typically part of a divorce decree or paternity judgment.

WHO CAN BE ORDERED TO PAY IT? A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED? Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

WHAT INCOME ITEMS DO TYPICAL FORMULAS COVER?

The formula is based on the respective net incomes of the parents. Federal and state income taxes, Social Security and Medicare tax, health insurance, union dues and other mandatory expenses are subtracted from a parent’s gross income (that is, income from all sources including, but not limited to, wages and investments) to arrive at his/her net income.

HOW DO YOU SHOW INCOME?

The court can require documentary evidence, such as pay statements, profit/loss statements of sole proprietorships, and tax returns, to be produced and certified as true under penalty of perjury. The intent is that all income received by a parent will be considered when his/her net income is being calculated.

If you suspect that a party is hiding income — such as by not reporting “cash” or “off the books” income — it may be difficult to prove, but an experienced lawyer usually is able to help you figure out how to do so.

WHAT OTHER ITEMS DO FORMULAS CONSIDER? 

Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the “custodial parent” (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the “non-custodial parent” (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

WHAT OTHER ITEMS DO FORMULAS CONSIDER?

Special Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.

Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount. Depending upon the method that is used in a given state, seeking a lawyer’s professional advice can be well worth the cost.

HOW DO CHILD CARE COSTS GET FACTORED IN?

The cost of child care can likewise be apportioned between the parents. Because child care costs are incurred so that a parent is able to earn income, it means that a greater amount of combined income is available for the support of the child. Since both parents benefit from the cost of child care, this cost is divided between the parents (usually 50% each). The parent who actually pays the child care expense receives payment from the other parent.

HOW LONG MUST CHILD SUPPORT BE PAID?

The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child’s minority, generally through the child’s high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting

CAN ONE PARENT BE ORDERED TO PAY CHILD SUPPORT EVEN IF S/HE NEVER MARRIED THE OTHER (CUSTODIAL) PARENT?

Yes. Child support is payable from one parent to the other for a common child, regardless of the marital status of the parents. This is very common in a paternity action, whether or not the issues of parentage, child visitation, child custody, and child support are resolved. Paternity actions to recover the cost to government for payment of Aid to Families with Dependent Children (AFDC or “welfare”) are commonly brought by local government agencies (such as the Office of the District Attorney) throughout the country to hold a parent responsible for child support, even when s/he has never been married to the other parent.

WHEN CAN A CHILD SUPPORT ORDER BE CHANGED OR MODIFIED?

An order for child support can be changed or modified any time there is a “material change in circumstances” from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent’s financial situation – such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child – such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

WHAT IF THE OBLIGEE PARENT DOES NOT SPEND ANY MONEY ON THE CHILD?

This is a very difficult issue to resolve. One hand, the obligee parent has the right to spend child support money received as s/he sees fit, in the best interest of a child. On the other hand, the obligee parent has the obligation to provide for the best interests of the child. If the obligee parent is derelict in meeting his/her parental responsibilities toward the child, and the child’s needs are not being met, s/he could be charged with child abuse or neglect. In extreme cases, this abuse or neglect would be grounds upon which a change in custody, in addition to a change in the obligation to pay child support, would be proper.

IF THE OBLIGOR PARENT DOESN’T PAY, CAN VISITATION BE STOPPED?

No. The child support obligation and the right to child visitation are two different issues.

Failure to pay child support is insufficient grounds to stop the right of the obligor parent to visit with his/her child. Visitation is ordered by a court in the best interest of the child, to promote love and affection with both parents, custodial and non-custodial. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be established.

On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for these needs; thus is treated as a separate issue, and does not have a determinative effect upon visitation. The obligee parent must continue to allow visitation with the child despite failure of the obligor parent to pay child support. Although this may be very hard for the obligee parent to understand, if the obligee parent “frustrates” the right of the obligor parent to visit with the child, the obligor parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.

MY INCOME DROPPED DRAMATICALLY WHEN I WAS LAID OFF MY JOB AND CANNOT MAKE MY CHILD SUPPORT PAYMENTS. IS THERE ANY WAY I CAN LOWER THE PAYMENTS?

Unexpected, significant decreases in income can be a reason to request modification of your child support order. Before incurring the additional expense of a court-mandated change, one route is to ask the other party to agree to a temporary reduction or deferral (if need be). If successful, put the terms in writing, sign, and date the document, preferably with the advice of a lawyer.

If that does not work, ask the court to modify the amount of the child support owed in the future, explaining your major and unavoidable drop in your financial situation, that the income is not likely to be replaced soon, and why the change would be fair. Most courts are sympathetic and receptive to making necessary changes in child support when you have experienced a financial setback. Again, paying a lawyer to help can pay for itself dozens of times over.

IS CHILD SUPPORT SUSPENDED DURING SUMMER VACATIONS WITH THE NONCUSTODIAL PARENT?

No, unless the parents agree to a different amount during vacation periods when the child(ren) are away for long periods of time with the non-custodial parent or the order says otherwise.

WHAT IS CHILD SUPPORT USED FOR?

Child support covers everything a child needs, “and even more”, during the growth and formative years. Keep the following in mind: A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life; and Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of “bare necessities.”

If the child has a wealthy parent, that child is entitled to, and therefore ?needs? something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent’s living standard, child support must “to some degree” reflect that more “opulent lifestyle.” This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the payor parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent’s other relationships).

Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent’s “elevated standard of living” despite custodial parent’s substantially lower income. Awarding supported children a percentage of a non-custodial parent’s future bonuses ensures they will share in his standard of living.

HOW ARE SUPPORT PAYMENTS TREATED UNDER FEDERAL INCOME TAX RULES?

Child support payments are typically not deductible from the income of the payer and are not included as taxable income to the supported spouse. Alimony or spousal support payments are tax deductible by the payer and taxable income to the supported spouse.

According to the Federal Internal Revenue Code, ” … any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payer spouse” is not considered alimony or a separate maintenance payment. Thus, such payments are a tax neutral event (they are non-taxable to the person receiving them and non-deductible to the person making them).

Federal Income Tax Regulations state:

“A payment is fixed as payable for the support of a child of the payer spouse if the divorce or separation instrument specifically designates some sum or portion (which sum or portion may fluctuate) as payable for the support of a child of the payer spouse. A payment will be treated as fixed … if the payment is reduced (a) on the happening of a contingency relating to a child of the payer, or (b) at a time which can clearly be associated with such contingency. … For this purpose, a contingency relates to a child of the payer if it depends on any event relating to that child, regardless of whether such event is certain or likely to occur. Events that relate to a child of the payer include the following: the child’s attaining a specified age or income level, dying, marrying, leaving school, leaving the spouse’s household, or gaining employment.”

Thus, under Federal income tax law, regardless of the label that is used, most child support payments are a tax neutral event, while most support payments provided to the other (former) spouse are deductible to the payer and included in the taxable income of the supported spouse.