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Child Support Topics covered here include:
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
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:
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. D. California Statutory Child Support Formula 405 Statewide Uniform Guideline for Determining Child Support Awards The statewide uniform guideline for determining child support orders is as follows:
K (amount of both patents' income allocated for child support) equals one plus H% (if H% is less than or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction: Total Net Disposable Income Per Month K $0-800 0.20 + TN/16,000 $801-6,666 0.25 $6,66730,000 0.10 + 1000/TN Over $ 10,000 0.12 + 800/TN For example, if H% equals 20 percent and the total monthly net disposable income of the parents is $1,000, K = (I + 0.20) x 0.25, or 0.30. If H% equals 80 percent and the total monthly net disposable income of the parents is $1,000, K = (2 - 0.80) x 0.25, or 0.30. For more than one child, multiply CS by: 2 children 1.6. 3 children 2. 4 children 2.3. 5 children 2.5. 6 children 2.65. 7 children 2.75. 8 children 2.8 3. 9 children 2.8 4. 10 children 2.86 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. In any default proceeding where proof is by affidavit pursuant to Section 2336, or in any proceeding for child support in which a party fails to appear after being duly noticed, H% shall be set at zero in the formula if the non- custodial parent is the higher earner or at 100 if the custodial parent is the higher earner, where there is no evidence presented demonstrating the percentage of time that the non-custodial parent has primary physical responsibility for the children. 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 paragraph does not apply to cases where there are different time-sharing arrangements for different children or where the court deter-mines that the allocation would be inappropriate in the particular case. Determination of Income for Support 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:
3. Excluded from gross income are:
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.
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.
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. I 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. H. 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 E-mail
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