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Family law (child support and spousal support)

Posted by attorney Carina Castaneda

CHILD support in California is based upon the Statewide Uniform Guidelines. It is presumed to be the correct amount. It can only be rebutted if: the parties agree to a different amount, the obligor parent has an exceedingly high income and the guideline amount exceeds the need of the child(ren), application of the formula would be unjust as enumerated by law.

Gross Income such as salaries, commissions, bonuses, pensions, trust income, worker compensation benefits, social security, unemployment benefits, self-employment wages. The court could also impute the earning capacity rather than actual income. This is relevant for those who purposefully are unemployed or underemployed. Net income will be computed by deducting items defined by law such as state and federal taxes, tax filing status, mandatory deductions such as union dues, retirement, health insurance, child support or spousal support being paid in another case, work related expenses, extraordinary health expenses and catastrophic losses. These deductions are narrowly defined and your attorney should inquire with you about such deductions.

The law allows for child care costs and reasonable uninsured medical costs that should be documented and requested. For those with a special needs child, a parent should request additional costs related to the education, travel expenses or any other necessary related costs to the child.

It is critical to establish an accurate child support order that is reflective of your financial situation. Due to enforcement mechanisms that are used by the state Department of Child Support Agencies, being behind in payments could cause you extreme hardships. Your wages could be garnished up to 50%, your driver’s license could be suspended, your professional licenses-at-issue and your passport renewal denied.

Child support is also fluid meaning if there are changes in your circumstance such as loss of a job, decrease in wages, increase in childcare or any significant financial change, a modification should be filed immediately. If the child is 18 and no longer in high school, the current child support should cease.

Did you know that you could face misdemeanor criminal charges for failing to pay child support? This could result in a criminal conviction with penalties of up to one year in jail and/or a $2000 fine. A good criminal defense lawyer with family law background should be able to demonstrate that your failure to pay in a timely manner was not willful. Facing child support arrearages can be difficult and stressful. The sooner you contact an experienced attorney, the sooner you resolve your arrearages and stop penalties.

SPOUSAL SUPPORT determination will be based on need and the other party’s ability to pay. Most courts will use the guidelines with the same factors used in determining child support. Spousal support duration is based on what the court deems just and reasonable. The court will consider the parties’ standard of living. While the guidelines can be used to determine spousal support, for a long term order, the threshold question is the marital standard of living obtained by the parties prior to the date of separation. Brief marriages will be given less support and for shorter duration than long term marriages.

The court will review the actual expenses of the parties, but this is not always the situation when parties have lived beyond their means. The court has wide discretion in allowing or disallowing spousal support. It is important that the attorney for the party requesting spousal support to have sufficient evidence to prove that there is a need and the basis for the monetary amount.

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