San Diego Child Support Lawyer
Child support is a critical element to ensuring a child’s upbringing is stable and progressive, and planning ahead at the beginning of a divorce and child custody case is critical to a positive outcome. For those who have just begun to research this family law topic, child support is the amount of money that a court orders a parent or both parents to pay every month to help pay for the support of the child (or children) and the child’s living expenses.
For those who are already divorced, or may already have a pre-existing child support court order, if your situation has changed, or perhaps your lawyer is no longer accessible, The Zarin Law Firm can help.
Each parent is equally responsible for providing for the financial needs of his or her child. But the court cannot enforce this obligation until it makes an order for support. When parents separate, a parent must ask the court to make an order establishing parentage (paternity) and also ask the court to make an order for 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 cannot support themselves).
Either parent can ask the judge to make a child support order as part of one of these types of cases:
- Divorce, legal separation, or annulment (for parents who are married or in a registered domestic partnership);
- A Petition to Establish Parental Relationship (for unmarried parents);
- A domestic violence restraining order (for married or unmarried parents);
- A Petition for Custody and Support of Minor Children (for parents who have signed a voluntary Declaration of Paternity OR are married, or registered domestic partners, and do not want to get legally separated or divorced )
Child support can also be ordered as part of a case filed by the local child support agency (LCSA), which is the local government agency located in each county that provides services to establish parentage and establish and enforce child support orders. Here is how:
- If 1 of the parents has been getting public assistance (like TANF -Temporary Assistance for Needy Families), the LCSA automatically files a child support case against the noncustodial parent. The case also includes as a party the custodial parent that is receiving public assistance.
- Either parent can ask the LCSA to provide child support services, which will then start a child support case.
- If a child is in foster care, the LCSA may start a child support case against 1 or both parents.
- Either parent can ask the LCSA to take over enforcement of a child support order in a family law case (like a divorce or parentage case).
California has a statewide formula (called a “guideline”) for figuring out how much child support should be paid.
If parents cannot agree on child support, the judge will decide the child support amount based on the guideline calculation.
The guideline calculation depends on:
- How much money the parents earn or can earn;
- How much other income each parent receives;
- How many children these parents have together;
- How much time each parent spends with their children (time-share);
- The actual tax filing status of each parent;
- Support of children from other relationships;
- Health insurance expenses;
- Mandatory union dues;
- Mandatory retirement contributions;
- The cost of sharing daycare and uninsured health-care costs; and
- Other factors.
The child support order may also require the parents to share the costs for:
- Child care to allow the parent to work or to get training or schooling for work skills;
- Children’s reasonable health-care expenses;
- Traveling for visitation from 1 parent to another;
- Children’s educational needs; and
- Other special needs.
The guideline amount is presumed to be correct. The judge can only order something other than the guideline amount in very limited situations. (Read the California Family Code sections 4052 and 4057 for more detail on calculating child support and what the judge can do.)
To estimate how much child support the judge may order in your case, go to California Guideline Child Support Calculator.
How The Court Calculates Your Income
The court bases child support on a parent’s “net disposable income.” This means the parent’s income after state and federal taxes and other required deductions. The court may order support based in part on bonuses, commissions, overtime, and other supplemental or non-wage income if the court determines that this income occurs regularly.
Certain income is NOT counted when determining a child support obligation. For example, the court cannot consider income from:
- General Assistance/General Relief, or
- SSI (Supplemental Security Income).
How the court calculates time-share
The court will calculate “time-share” (how much time each parent spends with the children) by comparing the amount of time that each parent has primary physical responsibility for the child. In general, this means that the court will count the numbers of hours or other portions of the day a parent spends with his or her child.
Usually, child support payments will decrease as time-share increases.
If you fall behind in child support payments, you must pay interest on the balance due on top of the amount you owe. Interest charges are added by law, and the judge cannot stop them.
- 10 percent per year for child support that was due on or after January 1, 1983; or
- 7 percent per year for child support that was due before January 1, 1983.
If you owe arrears (past-due child support), it is possible that your court order or wage assignment (garnishment) if there is one, will include an amount over the monthly child support. This amount goes to paying off your arrears, and it is often called a “liquidation amount.” But even if you are paying off your arrears in installments, interest continues to be added to your balance.
Not paying child support can have very serious consequences. If the court finds that someone has the ability to pay support but is willfully not paying it, the court can decide that the person ordered to pay support is “in contempt of court.” Being in contempt of court can be very serious because it can result in jail time. This enforcement tool is generally used only when all others have failed.
Depending on the situation, either parent might want to change the amount of child support that is paid. Changes in child support often make sense if either parent has had a significant change related to:
- His or her income,
- The other parent’s income, or
- The amount of time that each parent spends with the child.
Once you ask the court to modify the amount of child support, the court will make its decision based on the current circumstances (mainly both parents’ income and time-share with the child). This means that the child support amount could go either up or down.
Usually, court-ordered child support ends when the child turns 18 years old if he or she graduates from high school. If your 18-year-old child is still a full-time high school student and still lives with a parent, child support ends when your child graduates or turns 19, whichever occurs first.
Child support also ends when the child:
- Marries or registers a domestic partnership,
- Joins the military,
- Is emancipated, or
Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that cannot support himself or herself.
Federal and California laws require that every child support order include an order for “medical support.” This means that the court will order either or both parents to provide health insurance for the child as long as it is available at a “reasonable cost.”
- Federal requirements are in 45 Code of Federal Regulations section 302.56(3);
- California requirements are in the California Family Code sections 3750 through 3752.
You should also know that:
- Health insurance includes vision and dental coverage. See California Family Code sections 3750 through 3753.
- The cost is presumed to be reasonable if the cost of adding the children to the policy does not exceed 5 percent of the gross income of the parent that is being asked to provide the health insurance.
- Medical services need to be accessible, which means that routine medical care can be provided within 50 miles of the residence of the children.
- The payments for heath insurance are in addition to the base child support amount.
- The court will divide up the cost of any future uninsured medical costs between the parents.
- If your child support order is being made for the first time or is being modified, have information or proof available for the court on the cost of medical insurance because you are entitled to a deduction from your income before support is calculated to take this cost into account.
If you do not think you can afford to pay your medical support order, you can file 2 forms to ask the court to change or end the order:
- Request and Notice of Hearing Regarding Health Insurance Assignment(Form FL-478), AND
- Income and Expense Declaration (Form FL-150).
When Parents Agree To A Different Amount Of Child Support
California courts are required to order the amount of child support determined by the child support guideline unless the case fits 1 of the few legal exceptions to that rule. One of the exceptions is that the parties agree to an amount different (higher or lower) from the child support guideline, as long as it meets certain tests.
In general, parents can agree on a “non-guideline” support amount if they:
- Know their child support rights fully;
- Know the guideline child support amount;
- Are not pressured or forced to agree to this child support amount;
- Are not receiving public assistance;
- Have not applied for public assistance;
- Agree to an amount of support that will meet the needs of the children;
- Think that the child support amount is in the best interest of the children; and
- Have a judge approve the amount of child support payments.
Parents can also agree to a child support order based on the guideline. By agreeing and signing a written agreement (a stipulation) for the guideline amount, parents do not have to go in front of a judge to decide child support. Your agreement will need to be submitted to the court clerk for the judge to sign so that it can be enforced as an order of the court.
If 1 of the parents gets public assistance (like TANF), the local child support agency must agree to AND sign the agreement between the parents. The local child support agency must also sign the agreement if the agency is involved in a case to enforce (collect) the support order.