Family Law: Child & Spousal Support

This section is sponsored by Nancy W. Dahan The Law Offices of Brown & Dahan 38 Corporate Park, Irvine, California 92606 (949) 724-8857 Email: nancy@women911.com Nancy W. Dahan specializes in family law issues in Orange County. She has been a practicing family law attorney for twelve years and represents men and women who seek reasonable solutions to the problems they face going through a divorce proceeding. Mrs. Dahan has worked in Los Angeles and Orange County family law courts. In the event that Nancy's office is too far from your location, she will refer you to another family law attorney in your area.

You can email ( famlaw@women911.com ) all of your questions anonymously to the family attorney on duty. Your questions will be promptly answered in the order they are received. You can also review some of the most commonly asked questions and answers here.

Spousal Support / Child Support

Spousal Support

Formerly known as "alimony", spousal support is awarded in those cases where certain criteria are met. The amount of spousal support is not as uniformly regulated as is the amount of child support, and there are no binding tables that a Court must use. Some courts have such tables for temporary spousal support, i.e., support payable prior to the final decree.

When is Spousal Support Warranted?

Following are the factors a court must consider regarding spousal support:

• 1. The standard of living during the marriage and the ability of the parties to maintain that standard. This refers to the general station in life and not a precise level of expenditures.
  • (a) How this will be regarded will depend upon each case. For example, where there is a long marriage and the primary income earner has a steadily increasing income, future spousal support may not be limited to the standard of living during the marriage but might reflect the increased earnings after the marriage. On the other hand, where there is a short marriage, this would probably not be the case.
  • (b) Where earnings during a marriage are depressed because of alcoholism or substance abuse, the court might increase support after the marriage where the supporting spouse recovers from the addiction and their earnings rise.
  • (c) Where, however, the standard of living during the marriage was artificially high because the couple lived beyond their means, that standard of living will not be given much weight in determining support.
• 2. Earnings or earning abilities of the parties. The policy of the courts is to encourage a supported spouse to become self-sufficient. However, this is tempered by the realities of age, training and economic conditions. If a supported spouse is capable of earning a living, they will be expected to do so and may not sit back and enjoy unlimited support.
• 3. Contributions by supported spouse to the education and training of the supporting spouse. Where the spouse receiving support has helped the supporting spouse achieve his/her station in life through the marriage, it is more likely the support will continue for a longer period.
• 4. Needs in light of the marital standard of living of both parties. Spousal support is based upon the need of one party for support. That need will be interpreted in light of the standard of living during the marriage, not on a minimal subsistence level.
• 5. Assets and debts of the parties. If the party asking for support has assets available to them to provide that support, they will be looked to as reducing the need for support.
  • (a) Where a spouse has misused their assets they will not be given much sympathy by the court because of the reduced ability to support themselves.
  • (b) For purposes of spousal support, it does not matter whether the assets are community or separate property. What matters is what resources are available to the party for their own support.
  • (c) The debts of the parties must be considered as well. Certainly child support obligations will be taken into account. Excessive and unreasonable or unnecessary debts will probably be given little weight, however. Again, the standard of living during the marriage will give the court guidance regarding debts.
• 6. Duration of the marriage -- The longer a supported spouse has been out of the job market during the marriage, the greater likelihood of a support order.
  • (a) Where the marriage has been of relatively short duration, the court can consider a step-down order. This is an order where the level of support is decreased over time. But such orders must be based in real prospects for the supported spouse to provide increasing amounts of self-support.
  • (b) By law, where the marriage was over ten years long, the Court must at least retain the power to award support at a future date if it does not do so now.
• 7. Employability of supported spouse vs. impact on children. Increasingly, the courts require custodial parents to work, even though that might mean reduced care for minor children. Some weight may be given, however, to the needs of very young children to be cared for by the custodial parent and this may result in a need for spousal support while the child is very young. The special needs of a disabled child might be given weight in determining whether the care-giving parent is able to work and therefore needs spousal support.
• 8. Age and health of the parties. Even in short marriages, where a party has serious health problems preventing gainful employment, spousal support can be awarded and the duration could be longer than it might otherwise be.
• 9. Tax consequences. Spousal support is income to the party receiving it and a deduction for the party paying it. This fact will be considered by the court in setting the amount of spousal support (unlike child support).
• 10. Other just and equitable factors -- that which makes it "fair" Each of these factors has been discussed in hundreds of court cases and is the subject of much debate and discussion. If you have any question about spousal support, you should each seek legal counsel.

Duration, Payment, Termination

A few of the many issues that you should consider are:

• 1. To be deductible under federal tax law by the paying spouse, spousal support must end, at the latest, on the death of the receiving spouse.
• 2. Where the marriage has been more than ten years, the courts will presume the need for spousal support or at least the retention of jurisdiction to award support. Support may be warranted in shorter marriages, however, based on the factors listed above.
• 3. The length of the time support is payable also depends on the above factors. A rule of thumb sometimes used is that support is payable for one-half the length of the marriage. However, where the marriage has been long and the ability of the supported spouse to ever earn their own living is minimal, support should probably be for life.
• 4. The amount of support may be established as diminishing over time if that reflects the likelihood that the supported spouse will be able to earn their own living over time.
  • (a) This is referred to as a step-down order. For example, support might be set at $1,000 per month for the first year, $700 per month for the following two years and $500 per month for the following three years and then end.
  • (b) During the period of the step-down order, unless it is specifically made non- modifiable, it can be changed based upon different circumstances. Therefore, if, during the third year of the above example, a paying party suddenly became disabled and unable to work, they could ask to reduce or eliminate future spousal support.
  • (c) It is therefore in the interests of the parties to ask that the order be made non-modifiable if the order is especially favorable to them, and vice versa.
• 5. Even where support is not immediately necessary, especially where the marriage exceeded 10 years, the court most likely will retain jurisdiction to award support in the future. The period of this retention of jurisdiction may be limited, such as for 5 years. Retain jurisdiction means that the court has the power to change its order regarding support. For example, if the court in the original judgment decides that no support should be awarded at that time because both spouses are self-support, but retains jurisdiction over the issue, it could later award spousal support if one spouse is unable to support themselves.
• 6. Ordinarily spousal support is made terminable upon the death, remarriage or cohabitation of the supported spouse. Cohabitation means more than a roommate situation and generally refers to marriage-like relationships.

Modifiability

Unlike child support, which is always modifiable regardless of the agreement of the parties, spousal support may be made non-modifiable by the parties. A non- modifiable order cannot be changed by the court, no matter what changes in the circumstances of the parties. Making spousal support non-modifiable is a dangerous step for both parties. It means that even though the income of the supported spouse goes up, the amount of support cannot be lowered. It also means that even though the supporting spouse's income drops drastically, the amount cannot be changed. Give careful thought to all the possible ramifications before making support amounts non- modifiable.

Waiver of Support

If you waive spousal support now, once the court enters its judgment based upon your agreement to waive support, you CAN NEVER AGAIN GO BACK AND ASK FOR SPOUSAL SUPPORT. Nevertheless, both of you may be sufficiently secure about your employability or the marriage may have been of such a nature and duration that spousal support is simply not appropriate. If you do not check the box on the Petition asking for spousal support you may waive it. Therefore we suggest that you ask for it if there is any chance that you may need it. You can always agree to waive support during the divorce proceeding if that is your desire at that time.

You can email ( famlaw@women911.com )all your questions anonymousy to the family attorney on duty. Your questions will be promptly answered in the order they are received.

Child Support

Child support is a highly regulated field and this section will only be able to indicate a small portion of the law relating to the subject.

Fundamentals

Each parent is obligated by law to support the minor children of the marriage. This obligation extends, subject to some exceptions, until the child reaches the age of 18 years. The obligation to support minor children cannot be waived by either parent and is a right enjoyed by the child, not the parent. Hence, a parent cannot agree that the other parent has no duty of support of a child. It is a right that the child can enforce by itself, if necessary, although the custodial parent is given the legal right to seek child support on the child's behalf. The parties to a marriage CAN agree to extend liability for child support beyond that legally required. If the parties do so agree, the child can enforce the terms of that agreement even if the parents do not. For example, the parties can agree that child support will be payable until the child graduates from college. When child support is involved in a dissolution (always when there are children), you must submit the court's Income and Expense forms at the time you file for your judgment.

Duration of Child Support

As stated above, the normal period of the obligation to provide support for a minor child extends until their 18th birthday. Some of the exceptions to this rule are:

• Emancipation - Where the child has married, he or she is no longer a minor child for purposes of the Family Code and support is no longer required. Likewise, if a child has been declared legally emancipated, the support obligation ceases. This is a formal procedure and is not the same as a child leaving home.
• High School Students - The support obligation continues for a child who is a full time high school student, not married and not self- supporting until the child either completes the 12th grade or reaches age 19, whichever first occurs.
• Incapacitated Adult Child  - To the extent of their ability, both parents have an equal responsibility to support a child of whatever age who is incapacitated from earning a living and without sufficient means. There must be a mental or physical handicap preventing the child from being able to work or at least proof of inability to find any job due to factors beyond the child's control. The fact that the child is in college is not sufficient to trigger this provision of the law. There must be some disability preventing employment.
• Agreement of the parents - The parents of a child may agree to continue providing support for a child past the age of majority. Such an agreement is enforceable by the court. For example, the parents could agree to provide support of a child through college.

Amount of Child Support

While the parties can agree between themselves as to the amount and method of payment of child support, their agreement is not binding on the Court. State law specifies the minimum levels of child support allowable and the courts follow these laws very strictly. Child support amounts are computed according to a formula adopted by the legislature (see below). Courts routinely require the parties to submit a document showing that the amount of child support they have agreed upon meets or exceed the state law minimums. It may, therefore, be necessary for you to consult a California attorney to obtain a written computation showing that the law has been complied with. It is not known how the courts will deal with this issue when the parties appear without an attorney. If the party receiving child support is receiving welfare benefits, special rules apply to the determination of child support amounts. The agreement between the parties must be approved by the District Attorney's office of the county in which the child resides.

Some of the factors that will affect the amount of child support are:

• 1. The incomes of each parties. Recent Court decision about income
• 2. The reasonable expenses of the parties. Not all expenses are considered and this factor is much less important than income. The court will ignore expenses if it is not in the best interests of the child.
• 3. The amount of time each party has custody of the child. Thus, visitation with the non-custodial party will reduce the amount of support payable by that party.
• 4. Any extraordinary child care expenses, such as day care or medical costs.

Child support amounts agreed to by the parties cannot be made non-modifiable. Any agreement between the parties must be approved by the Court and must conform to the State guidelines unless the Court approves. For the Court to approve of an agreed upon child support order, it must find the following:

• (a) Both parties are fully informed of their rights;
• (b) The order is agreed to without coercion or duress;
• (c) The agreement is in the child's best interests;
• (d) The child's needs will be adequately met by the agreed upon amount; and
• (e) There is no public assistance being provided nor applied for.

Statewide Uniform Guideline for Determining Child Support Awards

California, like many states, has a uniform formula for determining child support.   The Court is legally bound to follow this formula unless it can specify reasons for varying from it. Attorneys and courts routinely use computer software to apply the formula (The "Dissomaster" software is only one of several products on the market).   Litigants are expected to bring a printout of the software results to court when they litigate child support.  Many courts have the software available in the courtroom, however. The formula results in child support amounts that are often felt to be impossibly high by those ordered to pay it.  Yet surveys show that the amounts paid for child support are almost always inadequate in covering the costs of raising a child. If the amount calculated under the formula results in a positive number, the higher earner shall pay that amount to the lower earner. If the amount calculated under the formula results in a negative number, the lower earner shall pay the absolute value of that amount to the higher earner. Unless the court orders otherwise, the order for child support shall allocate the support amount so that the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest child is the difference between that amount and the amount for two children, with similar allocations for additional children. However, this does not apply to cases where there are different time-sharing arrangements for different children or where the court determines that the allocation would be inappropriate in the particular case.

What Income Is Support Based Upon?

The code speaks of net monthly disposable income. This is a term of art and you should have an idea about how it is defined.

• 1. First, you cannot include income from the other party's new spouse. Only the income of the spouse themselves can be considered. This is a change in the law since 1992 and orders issued prior to January 1, 1994 might be different and now subject to modification.
• 2. To arrive at the net monthly disposable income you first start with the gross annual income for each parent. From this are allowed certain deductions. Included in gross income are:
  • (a) Income from commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment benefits, social security benefits and spousal support actually received from another person;
  • (b) Income from a business proprietorship, based on gross receipts;
  • (c) The Court may also include employee benefits taking into consideration the benefit to the employee and any reduction in living expenses;
  • (d) Lottery winnings;
  • (e) Federal benefits.
• 3. Excluded from gross income are:
  • (a) Income from child support payments received from another person;
  • (b) Income from public assistance.
  • * Note that under special circumstances, a party who is a low wage earner AND is capable of earning more may be charged with "imputed income."  If the Court believes that one parent has voluntarily reduced his or her wages, no matter how justified, it may compute child support based upon that parent's "imputed income" -- the amount they could be earning.
• 4. Permissible deductions from gross earnings are:
  • (a) State and federal income taxes. This is not necessarily the actual withheld amount, but rather what should be withheld under the persons circumstances. The tax effects of spousal support are not to be considered in this regard however (even though they can be considered for purposes of spousal support determinations);
  • (b) FICA or equivalent contributions;
  • (c) Mandatory Union dues and retirement benefit contributions (required as a condition of employment);
  • (d) Health and state disability insurance premiums for the parent and his/her minor children;
  • (e) Any court ordered child or spousal support actually being paid to another person not a party to this case;
  • (f) Job related expenses such as tools, uniforms, and possibly parking, transportation and mileage;
  • (g) Hardship expenses, including extraordinary health expenses for which the parent is responsible, uninsured catastrophic losses, minimum basic living expenses for children of other marriages for whom the parent is responsible. This is a complex topic and we suggest you seek legal counsel in this regard.

Earning Capacity

Instead of basing child support on actual net monthly disposable income, the court has the power to base its order on the parents earning capacity. Hence, where one parent has voluntarily reduced his or her income, the court has awarded support based upon what they could have earned instead of what they actually earned. Examples are where a parent voluntarily entered the priesthood, went on sabbatical, refused employment, returned to college, etc. Each case presents its own circumstances and there is no formula in such matters except that the court has the power to base its support order on the parents ability to earn. You should seek legal counsel in this type of case.

Child Support Options

Some optional provisions to add to your child support.

• 1. Medical Insurance. One of the most important expenses that a custodial parent must face at times is with regard to medical expenses. Some choices about how to provide for payment of health related expenses for the child(ren) are:
  • (a) Where one or both of you has available medical insurance for the child(ren) through your employment at no or reasonable cost, the law provides that the parent who has that benefit must provide coverage for and pay for the medical expenses covered by that policy.
  • (b) Where there is no such employment benefit or where the cost of such coverage is beyond the financial ability of the employee, the court can add the reasonable cost of health care to the amount of child support; Even where medical insurance is available to one of your for the child(ren), you may want to agree that costs above the insured coverage will be shared by the two of you equally or in some other proportion. Where both have insurance coverage, you may wish to agree that one policy will be looked to first and then the other and after that, expenses will be paid equally or in some other proportion. The child support order must include a provision requiring the parent obligated to provide health insurance to keep the other parent informed about whether health insurance is available and, if so, the policy information. There are many laws regulating this topic and they are beyond the scope of this Workbook. We suggest you consult legal counsel.
• 2. The parents employment, educational, or job-training related child care costs;
• 3. Costs related to the child's education or special needs;
• 4. Costs related to visitation.

When any of these items are added on to child support, the court is to divide these equally except where one parent demonstrates that another division would be more appropriate.

District Attorney Enforcement

The District Attorney of each county is charged with enforcing child support obligations including medical support when the child is receiving public assistance and when appropriate on behalf of a child not receiving public assistance. The district attorneys have developed significant tools for the recovery of child support in such cases and should be consulted immediately if you are on AFDC or any form of welfare. They will both obtain an initial order for support and seek increases and enforcement of existing orders. Because of the overwhelming number of cases presented for action by district attorneys, it is sometimes difficult to get an appointment with them and may be difficult to get your case scheduled. However, if you are on public assistance anyway, the money recovered will go to the county to partially reimburse it for payments under public assistance programs.

You can email ( famlaw@women911.com )all your questions anonymousy to the family attorney on duty. Your questions will be promptly answered in the order they are received.