When a hardship deduction is granted by the Court, it reduces the qualifying parent's income available for child support. If the hardship is granted to the payor of child support, it will most likely result in a reduced child support obligation. If the hardship is granted to the payee of child support, it will most likely result in a increased child support award.
When the Court can grant a Hardship
The reference to "applicable published appellate Court decisions" in determining a hardship deduction does not vest Courts with a roving commission to recognize new hardship deductions simply to accomplish their notion of justice but, instead, simply makes explicit that the relevant statutes are to be applied as construed in authoritative appellate decisions. Those decisions clarify that the authorized hardship deductions are strictly statutory, limited to the circumstances expressly codified in Family Code Section 4071. Haggard v. Haggard, (1995) 38 Cal. App. 4th 1566, 1571. The concept of a hardship deduction, therefore, can only be applied in one of three situations: (1) to accommodate extraordinary health expenses for which the parent is financially responsible; or (2) to accommodate uninsured catastrophic losses for the parent requesting a hardship, or (3) for the minimum basic living expenses of either parent's natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent. Family Code Section 4071. Further, the granting of a hardship deduction is not automatic, and lies within the sound discretion of the trial Court. Family Code Section 4070.
Discretion to Award a Hardship
The discretion that rests with the trial Court is paramount. In many of my cases, creative advocacy has enabled me to avoid the increased support for my client that could result from the other party claming a hardship deduction. For example, in older children (age fourteen or over) I have successfully argued that their monthly financial requirements from the biological parent are slim, especially if the teenager is employed and beginning to support himself/herself. In other scenarios, I have persuaded the Court to decline to issue a hardship if the party could seek out child support from the biological parent, but has failed to make good faith efforts to do so. But, the bottom line is that the parent requesting a hardship must "prove" to the Court that the other child from a previous marriage/relationship increases their expenses, and that a deduction is appropriate in light of the law.
For example, in Marriage of Paulin, (1996), 46 Cal. App. 4th 1378, one of the very few published decisions on the concept of a hardship, the Appellate Court found that substantial evidence supported the trial court's finding that the former husband was entitled to statutory hardship deduction from his child support obligation. The Court based this award due to justifiable expenses resulting from the birth of twins to former husband and his present wife which caused extreme financial hardship. The Court based its decision on the income and expense declaration of the former husband showing he had net monthly disposable income of $3,943 before payment of child support. Additionally, his total monthly expenses, including those attributable to the twins, was $4,753, and husband's counsel made offer of proof that birth of those children had raised husband's out-of-pocket expenses by $1,000 a month.
The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.