Child and spousal support are primary issues in all family law matters. These issues need to be carefully prepared and professionally presented. Each case that has these issues should be discussed with an attorney. If your matter has support issues involved, make the right decision and seek professional assistance now by telephoning our office and arranging a consultation. After all, it is your future.
Child support in California is calculated using a "formula." The concept is to have people in similar financial and child-sharing situations (see our Child Custody topic) paying similar sums for support.
Initially, the parties are required to complete an income and expense declaration. This is a judicial council form that is signed under penalty of perjury. All of the entries must be accurate. Complete and full disclosure is mandatory. Failure to accurately provide the information can result in sanctions, retroactive orders and worse.
The formula starts with determining the individual gross income of both parties. The income from all sources, including dividends and interest, is considered. Issues of "seasonal income," commissions, bonuses, stock options, unemployment, ability to earn/earning capacity, disability and overtime are all subjects the court entertains in attempting to ascertain the initial gross income figure. Additionally, nontaxable income, such as military basic allowance for housing/subsistence, is also considered. How the court rules on each issue depends on the unique factual situation of each case.
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Once the monthly "gross income" is determined, deductions are taken from that. These deductions include, but are not limited to, federal and state taxes (Note: "New mate" income is generally not considered except to determine your tax bracket.), health insurance costs, mandatory pension deductions (not 401(k) voluntary contributions), union dues, job-related expenses and court-ordered support actually being paid in another matter. Additionally, real property taxes and mortgage interest are also considered because they affect your tax bracket and thus your actual "child support net income."
Once each party's monthly net income is determined, the court turns its attention to the amount of time each parent spends with the children. This child-sharing time is mandatory for the court to make a child support order. The time each parent spends with the children is factored into the formula.
After making all of the above determinations, the court will make a child support order. Child support is not deductible by the payer on income taxes nor is it income to the payee. The court can make a temporary support order at the Order to Show Cause hearing (see our Divorce page). Additionally, a child support order will usually be included in the final judgment. Child support orders are always modifiable as circumstances change. Unless waived, child support will be made payable by wage assignment.
Unlike child support, spousal support is not determined by a formula. However, the court can and routinely does consult the "recommended" spousal support computed by formula, particularly when making temporary orders at the Order to Show Cause hearing (see our Divorce page).
Spousal support is more commonly known as alimony. The payer of court-ordered spousal support may deduct the money paid from gross income, and the support is income to the payee and thus taxable.
The concept of spousal support is to provide the low-wage earner of the marital partnership sufficient income to remain at or near the marital standard of living. It is driven by the needs of the recipient versus the ability to pay by the payer. The court has to take into consideration all of the following:
1) The marketable skills of the supported party; the job market for those skills; the time and expense for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment
2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during marriage to permit the supported party to devote time to domestic duties
3) The extent to which the supported party contributed to the attainment of an education, training, career position or a license by the supporting party
4) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living
5) The needs of each party based upon the standard of living established during the marriage
6) The obligations and assets, including the separate property, of each party
7) The duration of the marriage. Note: Marriages of 10 years or longer are deemed long-term, which has significant impact on spousal support.
8) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party
9) The age and health of the parties
10) Any history of domestic violence and the criminal consequences thereof
11) The immediate and specific tax consequences to each party
12) The hardships to each party
13) Any other factors the court determines are just and equitable
It is important to note that the policy of the state of California is for both parties to be self-supporting within a reasonable period of time, except in the case of long-term marriages. That "reasonable period of time" is generally one-half the length of the marriage.
The above list demonstrates how the decisions you make now will affect you for years in the future. The presentation of your matter should be done by a skilled professional. Make the right decision and arrange an appointment with us to discuss your matter. It is your future.