«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»
CALIFORNIA JUDGES BENCHGUIDES
CHILD AND SPOUSAL SUPPORT
The California Center for Judicial Education and Research (CJER), as the Education Division of the Administrative Office
of the Courts (AOC), is responsible for developing and maintaining a comprehensive and quality educational program for the
California judicial branch. Formed in 1973 as a joint enterprise of the Judicial Council and the California Judges Association, CJER supports the Chief Justice, the Judicial Council, and the courts by providing an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels. It includes orientation programs for new judicial officers, court clerks, and administrative officers; continuing education programs for judicial officers, court administrators, and managers; an annual statewide conference for judicial officers and court administrators; video and audiotapes; and judicial benchbooks, benchguides, and practice aids.
CJER GOVERNING COMMITTEE
Hon. Barbara A. Kronlund
CJER PROJECT STAFFSuperior Court of California, County of San Joaquin Kimberly DaSilva Hon. Beverly Reid O’Connell Attorney Superior Court of California, County of Los Angeles Iris Okura Ms. Teresa A. Risi Senior Editor Chief Operations Officer Superior Court of California, County of Orange CFCC PROJECT STAFF Mr. Michael M. Roddy
CHILD AND SPOUSAL SUPPORTI. [§201.1] SCOPE OF BENCHGUIDE II. [§201.2] APPLICATION TO REGISTERED DOMESTIC
III. PROCEDURAL CHECKLISTSA. [§201.3] Child Support B. [§201.4] Spousal Support
IV. DETERMINING INCOME AVAILABLE FOR CHILD
SUPPORTA. [§201.5] Net Disposable Income B. [§201.6] Gross Income 1. [§201.7] Mandatory Income a. [§201.8] Business Income b. [§201.9] Bonuses and Commissions c. [§201.10] Overtime d. [§201.11] Employee Stock Options e. [§201.12] Income From Gifts or Inheritances f. [§201.13] Lottery Winnings 2. [§201.14] Discretionary Income C. [§201.15] Fluctuating Income D. [§201.16] Income of Parent’s New Spouse or Nonmarital Partner E. [§201.17] Evidence of Income F. Considering Parent’s “Earning Capacity” Instead of Actual Income 1. [§201.18] Statutory Rule
2. Ability and Opportunity To Work a. [§201.19] Bad Faith Not Required; Regnery Rule b. [§201.20] Issue of Motivation 201–1 California Judges Benchguide 201–2 c. [§201.21] Burden of Proof and Evidence of Earning Capacity d. [§201.22] Incarcerated Parent 3. [§201.23] Objectively Reasonable Work Regimen 4. [§201.24] Considering Children’s Best Interests 5. [§201.25] Imputing Income From Assets G. [§201.26] Exclusions From Income H. [§201.27] Deductions From Income I. Hardship Deduction 1. [§201.28] Health Expenses or Uninsured Losses 2. [§201.29] Support of Other Children Residing With Parent 3. [§201.30] Considerations for Court
V. CHILD SUPPORTA. [§201.31] Statewide Uniform Guideline B. [§201.32] Principles in Implementing Guideline C. Guideline Formula 1. [§201.33] General Parameters
2. Guideline Components a. [§201.34] Time-Share With Children (H%) (1) [§201.35] Imputed Time-Sharing (2) [§201.36] Time-Share Adjustment When One Parent Defaults or Fails To Appear b. [§201.37] Net Monthly Disposable Income (TN) c. [§201.38] Amount of Income Allocated for Child Support (“K”) 3. [§201.39] Child Support Amount for More Than One Child 4. [§201.40] Allocation of Child Support Among Children 5. [§201.41] Determining Who Is Payor 6. [§201.42] Low-Income Adjustment 7. [§201.43] Mandatory Findings on Request of Parties 8. [§201.44] Using Computer Software To Calculate Support Amount D. Departing From Guideline Formula 1. [§201.45] Bases for Departing From Formula a. [§201.46] Stipulated Support b. [§201.47] Deferred Sale of Home Order c. [§201.48] Extraordinarily High Income Payor (1) [§201.49] “Extraordinarily High Income” Not Defined (2) [§201.50] High Earner’s Burden of Proof in Rebutting Formula Amount 201–3 Child Support and Spousal Support
12. [§201.83] Goal of Self-Support 13. [§201.84] Conviction for Domestic Violence or Attempted Murder or Solicitation of Murder 14. [§201.85] Other “Just and Equitable” Factors D. [§201.86] Marital Standard of Living E. Findings 1. [§201.87] Mandatory Findings on the Marital Standard of Living 2. [§201.88] Findings of Other Circumstances on Request F. [§201.89] Statement of Decision G. [§201.90] Gavron Warning H. [§201.91] Duration of Support Order I. [§201.92] Retention of Jurisdiction J. Types of Orders 1. [§201.93] Order of Indeterminate Duration 2. [§201.94] Fixed-Term Order 3. [§201.95] Step-Down Order 4. [§201.96] Contingent Order 5. [§201.97] Richmond Order K. [§201.98] Modifying or Terminating Spousal Support 1. [§201.99] Change of Circumstances Requirement a. [§201.100] Increased Ability To Pay and Original Order Inadequate To Meet Needs b. [§201.101] Supported Spouse Cohabitating With Person of Opposite Sex c. [§201.102] Retirement of Supporting Spouse 2. [§201.103] No Consideration of Income of Supporting Spouse’s Subsequent Spouse or Partner 3. [§201.104] Retroactive Modification 4. [§201.105] Parties Agreement Not To Modify or Terminate Order L. [§201.106] Termination of Spousal Support M. [§201.107] Setting Aside Support Order N. [§201.108] Effect of Premarital Agreement 201–5 Child Support and Spousal Support §201.2
APPENDIX A: SAMPLE PARENT/CHILD TIME-SHARING
APPENDIX B: SPOUSAL SUPPORT WORKSHEET
TABLE OF STATUTES
TABLE OF CASESI. [§201.1] SCOPE OF BENCHGUIDE This benchguide covers the subject of child support and the application of the Statewide Uniform Guideline. It includes a discussion on determining income available for child support. In addition, the benchguide covers spousal support, both temporary and permanent support. A discussion of Title IV-D (42 USC §§651 et seq) child support cases filed by local child support agencies is beyond the scope of this benchguide.
II. [§201.2] APPLICATION TO REGISTERED DOMESTIC
PARTNERSHIPSThe California Domestic Partner Rights and Responsibilities Act of 2003 extends to registered domestic partners the same rights, protections, benefits, and obligations that apply to spouses under California law both during and on termination of the union. Fam C §297.5. The laws governing the dissolution, nullity, or legal separation of marriage apply to the dissolution, nullity, or legal separation of a domestic partnership. Fam C §299(d).
As used in this benchguide and for purposes of family law rules, the terms “spouse(s),” “husband,” and “wife” encompass “domestic partner(s)”; “father” and “mother” encompass “parent”; “marriage” and “marital status” encompass “domestic partnership” and “domestic partnership status.” Cal Rules of Ct 5.28; Fam C §297.5.
III. PROCEDURAL CHECKLISTSNote: As of July 1, 2012, orders to show cause must be filed on a Request for Order form. See Judicial Council form FL-300. An attached declaration must provide facts sufficient to notify the other party of the declarant’s contentions in support of the relief requested. Cal Rules of Ct 5.92, 5.118.
A. [§201.3] Child Support (1) Determine each parent’s gross income. Review each parent’s Income and Expense Declaration (JC form FL-150) or Financial Statement (Simplified) (JC Form FL-155). Verify the income with pay stubs and federal tax returns. See Fam C §3552(a) (parent must submit copies of his or her state and federal income tax returns on request of the court). On what constitutes gross income, see §§201.6–201.14. On what constitutes evidence of income, see §201.17.
JUDICIAL TIP: Parties should exchange copies of tax returns submitted with their Income and Expense Declaration forms. See Fam C §3552(b) (returns may be examined and are discoverable by other party). The returns, however, should not be retained and filed with the court unless the court determines that the returns are relevant to the disposition of the case. Fam C §3552(c).
(2) Exclude income of either parent’s new spouse or nonmarital partner, unless this is an “extraordinary case” in which excluding this income would lead to extreme and severe hardship to the children. See §201.16. The court may consider this income, however, when determining a parent’s actual tax liability under Fam C §4059(a) for purposes of computing the parent’s net disposable income. See §201.26.
(3) Determine whether parent’s earning capacity should be considered instead of parent’s actual income. By statute, the court has discretion to consider earning capacity instead of actual income consistent with the children’s best interests. Fam C §4058(b); e.g., court may consider the earning capacity of a parent who is unemployed or allegedly underemployed if it is shown that this parent has both the ability and an opportunity to work. Marriage of Regnery (1989) 214 CA3d 1367, 1372– 1373, 263 CR 243. On considering earning capacity, see §§201.18– 201.24.
(4) Determine whether to impute income to parent from his or her assets. See §201.25.
(5) Determine each parent’s net disposable income available for child support by deducting amounts listed in Fam C §4059 from parent’s gross income. See §201.27.
(6) Rule on parent’s request for hardship deduction from his or her net disposable income for health expenses or uninsured losses, or for support of other children residing with parent. See §§201.28–201.30. If a deduction is allowed, state the reasons supporting the deduction in writing or on the record. See §201.30.
(7) After computing each parent’s net disposable income, divide this income by 12 to arrive at each parent’s net monthly disposable income.
Use these income amounts in computing amount of child support using the State Uniform Guideline formula, taking into consideration the percentage 201–7 Child Support and Spousal Support §201.3 of time children will be living with each parent. See §§201.31–201.38. On computing amount of child support when one parent defaults or fails to appear, see §201.36. On using computer software to calculate amount of support, see §201.44.
JUDICIAL TIP: Given the complexity of the State Uniform Guideline formula, almost all family law judges, attorneys, and parties rely on computer software programs to calculate the guideline. The judge should not try to manually calculate the guideline, but rather use the software employed by his or her court.
(8) If there is more than one child, multiply child support amount by appropriate figure specified in Fam C §4055(b)(4). See §201.39.
Typically, the computer software program performs this multiplication and allocation between the children. In your order, state the amount of support per child.
(9) If child support amount is a positive number, order the higher earner to pay this amount to the lower earner; if child support amount is a negative number, order the lower earner to pay the absolute value of this amount to the higher earner. Fam C §4055(b)(5).
(10) Determine whether parent ordered to pay support is entitled to a low-income adjustment reducing the child support amount. See §201.42.
(11) On party’s request, state in writing or on record the information specified in Fam C §4056(b) used to determine guideline amount of child support. See §201.43.