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Information About Child Support Considerations In California

Nelson Kirkman helps mothers and fathers throughout Orange County with all aspects of child support. You have probably found yourself with a variety of questions about child support, including what your child support arrangement will look like. You can read ahead for a few of our answers to some of our clients’ frequently asked questions.

Table of Contents

How is guideline child support determined?

Guideline child support is calculated according to a complex formula used by software programs called Xspouse and DissoMaster. After the guideline child support amount is determined by the software, the court may order that one parent pay additional expenses it calls “add-ons” over and above the child support amount. Add-ons range from schooling and child care to medical costs. These add-on costs can be paid by one parent or distributed between both depending on the court’s decision. Sometimes the family court may order a certain level of child support based on a parent’s base salary, but stipulate additional payments based on other compensation such as bonuses. This supplemental payment is called an Ostler-Smith order.

Does the child support amount come from a computer program?

Computer programs are used to begin the process by determining a “guideline” level of child support. This amount is frequently modified by court order that one parent pay additional expenses it calls “add-ons” over and above the child support amount. Add-ons range from schooling and childcare to medical costs. These add-on costs be paid by one parent or distributed between both depending on the court’s decision. Sometimes the family court may order a certain level of child support based on a parent’s base salary, but stipulate additional payments based on other compensation such as bonuses. This supplemental payment is called an Ostler-Smith order.

Does the amount of time a parent has physical custody of the child impact the amount of child support?

The amount of time that a parent has custody of the child is a significant factor in determining child support amounts. A higher timeshare of custody for a payer will decrease the amount of child support and vice versa. Conflict over timeshare tends to arise because of issues such as who has custody during the school day and sleep hours.

What is the difference between the temporary stage and post-judgment stage in determining guideline child support?

The primary difference is when the determination is made. Temporary guideline child support is determined during the Request For Order (RFO) stage, while post-judgment child support is ordered during the trial. The same formula for guideline child support is used at the two stages.

Does the court have the discretion to depart from the computer-generated guideline child support?

Yes, the court has the discretion to deviate from the guideline child support amount even though the presumption is that the guideline amount is correct. The court must make certain findings to depart from guideline child support (IRMO Hall). Here are some circumstances that may lead the court to depart from the computer-generated child support amount:

  • The child’s special needs (IRMO Cryer)
  • A deferred award of the home to the payee
  • A party with an especially high income
  • The formula would result in an unjust amount
  • An inappropriate party contributing to the child’s needs during their timeshare custody
  • The payment of community consumer debt that was used for basic living needs (County of Lake v. Antoni)
  • Housing without a mortgage payment (IRMO Schlafly)

Our clients receive a candid analysis of the strengths, weaknesses, opportunities, and threats to their child custody case after their first attorney-client meeting and are updated as additional facts about the case emerge. You deserve the opportunity to make smart decisions about your children and their future, and to do that, you need the unvarnished truth about the situation.

How is timeshare custody calculated for purposes of guideline child support?

The amount of time each parent has custody of the child impacts the calculation of guideline child support payments. The court may calculate the timeshare of custody in several different ways. Sometimes, the divorce court will determine a percentage of time each parent has custody (IRMO Rosen and IRMO DaSilva). In other cases, the court will order that custody hours are counted, creating an exact timeshare down to the hour for each parent.

The divorce court may attribute the time a child is in school or sleeping to one parent if that party is responsible for the child’s welfare during those hours (IRMO Whealon and IRMO Katzberg).

How are a child’s special needs taken into consideration for child support?

The divorce court takes a child’s special needs into consideration as part of the process to determine child support. The court will also consider related topics, such as if the child has attended private schools and the reasons for that attendance. The court intends for child support payments to address the child’s needs, not just their basic necessities, so a parent may be ordered to pay more in such cases.

At what age does child support end?

Child support payments continue until the child has completed high school or reached the age of 19. In some cases, support continues for adult children if they are incapable of supporting themselves.

What sources of income are used to determine guideline child support?

Guideline child support is based on the gross income of the parties and includes many types of compensation and revenue such as:

  • Base salary
  • Bonus payments
  • Rent payments received
  • Royalties
  • Workers’ compensation payments
  • Unemployment benefits
  • Disability payments
  • Social Security benefits
  • Perquisites
  • Deferred income
  • Allowances based on military service
  • Meal allowances
  • Annuity payments
  • Vested stock options and restricted stock
  • Recurring gifts

Some forms of revenue or income are not included in the guideline child support calculation, including:

  • Inheritances
  • Personal injury recoveries taken as a lump sum
  • Loans, including student loans
  • Life insurance proceeds
  • The sale of stock when reinvested in a business

What are some of the common issues surrounding the determination of income available for child support?

As the family law court examines the income and assets of each parent, many issues, complications, and disputes may arise. For example, when the amount of income for a parent is disputed, the court may consider recent loan applications as admissions of income (IRMO Calcaterra & Badakhsh). Voluntary loan payments, such as paying down a mortgage, cannot be used to give the appearance of lower assets or income (IRMO Kirk). The voluntary deferral of income is not a valid reason for reducing child support (IRMO Berger). Increased equity in a family home is not considered income for purposes of determining child support (IRMO Henry). Spousal support is not considered income when calculating child support (IRMO Corman).

Is a financial gift from a third party considered income for child support purposes?

Financial gifts are sometimes considered income for the purposes of calculating child support. If the gifts are loans or advances on an expected inheritance, they are not considered income. They are also not considered income if they are not recurring. Recurring gifts may be considered income at the discretion of the court (IRMO Alter). Even if a gift is recurring, there are circumstances in which it may not be considered income for calculating child support. For example, recurring gifts from a “good Samaritan” are not income as they pertain to child support (Anna M. v. Jeffrey E.).

How does income that fluctuates impact child support?

Divorcing parties frequently have income that fluctuates significantly based on factors such as overtime pay, sales commissions, and bonus payments. The court uses a representative time period as a sample of what levels of income the parties will realistically have in the future (IRMO Riddle). Sometimes, the court will order the child support payer to pay a set percentage of fluctuating income, such as bonuses as supplemental payments, to support the child (IRMO Ostler and Smith). If the income fluctuation is due to compensation such as stock options, it is important to recognize that stock options that are vested but not exercised may also be considered income for purposes of calculating child support (IRMO Kerr and IRMO Macilwaine).

Is a party’s actual income always used when calculating child support?

No, in some circumstances the court will not use a divorcing party’s actual income for calculating child support, but rather use their ability to earn. This occurs when the court finds that the party is deliberately lowering their income to pay less support (IRMO Labass & Munsee). A divorce lawyer must prove that the other party has a higher capacity to earn than their income shows for this to happen.

Will the court force a payer to work excessive hours to pay child support?

Typically, the answer is no. A payer’s ability to earn is compared to a reasonable person in the same industry working a typical, non-excessive schedule. The court will not base child support on overtime pay, but if the payer continually works excessive hours and earns significant amounts of money by doing so, then the court may base child support on the higher level of income they are receiving.

If a party reduces their income for good faith reasons, will the court impute their earnings to calculate child support?

If a divorcing party voluntarily quits their job or lowers their income, the court may impute their income to the previous level of income to calculate child support, regardless of whether the move was made in good faith (IRMO Padilla). The reason the party chose to reduce their income does not matter when calculating child support (IRMO Hinman).

Can the court consider earnings on assets for child support purposes?

Yes, the court can impute earnings from the assets held by each divorcing party when calculating the amount of child support (IRMO Dacamus, IRMO Destein and IRMO Sorge). Unrealized equity in a home will never be included as income in the child support calculation.

Will the court consider a history of using separate property to pay community expenses when calculating child support?

Yes, if a payer has an established pattern of using their separate assets to create a certain standard of living for the family, the court may order them to continue this practice in regard to child support (IRMO Deguigne).

Will a reduction in income for the payer parent always lower child support payments?

No, a reduction of income will not always result in a reduction of child support payments. The court will determine if the change is significant enough to be a change in circumstances to such a degree that a reduction in child support payments is required. The court will also consider alternate sources of income and if the timeshare of custody has been altered.

Does a child’s best interest factor into the court’s decision on imputing income to a custodial parent?

Yes, the court will impute income to a custodial parent only if it is in the child’s best interests (IRMO Ficke). For example, the court may choose not to impute income to a mother with custody if it would result in her having to work outside the home and the court finds it would be in the child’s best interest for her to stay home.

Could the court order the primary custodial parent to pay child support to the other parent?

Yes, the court will impute income to a custodial parent only if it is in the child’s best interests (IRMO Ficke). For example, the court may choose not to impute income to a mother with custody if it would result in her having to work outside the home and the court finds it would be in the child’s best interest for her to stay home.

How will the court address health insurance for the child?

New answer needed here about health insurance.

Can the court require that a percentage of child support payments be saved for college?

No, the court cannot order that child support payments be saved for college through methods such as paying into an educational trust. Family law court does not have the discretion to order child support to be used to fund higher education, no matter how large support payments are (IRMO Chandler).

Can child support orders be modified?

Yes, child support can be modified by the court. This usually happens if there is a significant change in circumstances after the order was made. A change in income level may or may not be a material change in circumstances, which is also true for changes in custody timeshare. A serious drop in income may not be a material change in circumstances if there is other income from investments and other sources.

We Have More Answers – Ask Us Your Questions Today

When you need to know information about child support, you can find it at Nelson Kirkman. Schedule an initial consultation with one of our divorce and family law attorneys today. To schedule yours, please call 949-430-6952 or send us an email.