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«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»

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— Unless the parties stipulate otherwise, the tax effects of spousal support may not be considered in determining the net disposable income of the parties for determining child support but must be considered in determining spousal support.

— Although the court is generally precluded from considering income of a subsequent spouse or nonmarital partner in 201–27 Child Support and Spousal Support §201.27 determining child support under Fam C §4057.5, it may consider such income when determining the supporting parent’s actual tax liability. See §201.16.

• FICA contributions. A party not subject to FICA may deduct actual contributions to secure retirement or disability benefits to the extent the contributions do not exceed the amount that would be otherwise deducted under FICA. Fam C §4059(b).

• Mandatory union dues and retirement benefits required as a condition of employment. Fam C §4059(c).

• Health insurance premiums for both the parent and any child the parent has an obligation to support. Fam C §4059(d).

• State disability insurance premiums. Fam C §4059(d).

• Child and spousal support “actually being paid” under an existing court order, to or for the benefit of, anyone whose support is not a subject of the present case. Child support paid without a court order may be deducted, to the extent it does not exceed the amount

established by the statewide guideline, if:

— The support is for natural or adopted child of the parent not residing in that parent’s home, — The child is not a subject of the order to be established by the court, and — The parent has a duty to support the child. Fam C §4059(e).

• Job-related expenses, if allowed by the court after considering whether they are necessary, the benefit to the employee, and other relevant facts. Fam C §4059(f). Job-related expenses clearly include costs directly incurred for employment purposes (e.g., tools, uniforms) and any other unreimbursed costs that would not be incurred but for employment (e.g., on-the-job parking expenses and transportation and mileage for commuting to and from work).

Stewart v Gomez (1996) 47 CA4th 1748, 1755, 55 CR2d 531.

However, depreciation of rental properties is not properly deductible from income. Asfaw v Woldberhan (2007) 147 CA4th 1407, 1412–1413, 55 CR3d 323.

• A deduction for hardship, as defined by Fam C §§4070–4073, and applicable published appellate decisions. Fam C §4059(g). See §§201.28–201.30.

Each parent’s net monthly disposable income is then computed by dividing the annual net disposable income by 12. Fam C §4060. This figure is then used in computing the amount of child support under the guideline formula. Fam C §4055(b)(2). See §201.31.

§201.28 California Judges Benchguide 201–28 I. Hardship Deduction 1. [§201.28] Health Expenses or Uninsured Losses If a parent is experiencing extreme financial hardship because of extraordinary health expenses for which the parent is financially responsible or because of uninsured catastrophic losses, the court may allow a hardship deduction for these expenses from the parent’s net disposable income. Fam C §§4059(g), 4070, 4071(a)(1).

2. [§201.29] Support of Other Children Residing With Parent If a parent is experiencing extreme financial hardship due to his or her obligation to support children from other marriages or relationships who reside with the parent, the court may allow a hardship deduction for these support expenses from the parent’s net disposable income after making any hardship deduction for extraordinary health expenses or uninsured catastrophic losses. Fam C §§4059(g), 4070, 4071(a)(2). The maximum hardship deduction for each child who resides with the parent may equal, but not exceed, the support allocated to each child subject to the order. For purposes of calculating this deduction, the amount of support per child established by the Statewide Uniform Guideline is the total amount ordered divided by the number of children and not the amount established under Fam C §4055(b)(8). Fam C §4071(b). See Marriage of Paulin (1996) 46 CA4th 1378, 1382, 54 CR2d 314 (court may reduce child’s support payment, if necessary, to alleviate parent’s extreme financial hardship occasioned by birth or adoption of other children). See also Marriage of Whealon (1997) 53 CA4th 132, 145, 61 CR2d 559 (court has discretion in computing amount of hardship deduction to allow for child of parent’s subsequent marriage, taking into account new spouse’s income).

This deduction for hardship is not available as a matter of course when the parent is responsible for the support of other children but is limited to the unusual situation, or the reasonable minimum living expenses are unusually high in the context of the family’s income.

Marriage of Carlsen (1996) 50 CA4th 212, 217 n5, 57 CR2d 630.

3. [§201.30] Considerations for Court The court must be guided by the goals set forth in Fam C §§4050– 4076 when considering whether to allow a financial hardship deduction and when determining the amount of the deduction. Fam C §4073. If the court allows a deduction for hardship expenses, it must state the reasons supporting the deduction in writing or on the record and must document the amount of the deduction and the underlying facts and circumstances.





Fam C §4072(a). The court must also specify the duration of the deduction 201–29 Child Support and Spousal Support §201.32 whenever possible. Fam C §4072(b). See Marriage of Carlsen (1996) 50 CA4th 212, 217, 57 CR2d 630 (statutory requirement of findings is not satisfied by incorporating DissoMaster printout into support order; court must articulate its reasoning).

A court does not have authority to allow a hardship deduction for expenses other than those specified in Fam C §4071. Marriage of Butler & Gill (1997) 53 CA4th 462, 465–466, 61 CR2d 781 (no hardship deduction for father’s support of his mother).

V. CHILD SUPPORT

A. [§201.31] Statewide Uniform Guideline California has a strong public policy in favor of adequate child support, which is expressed in the Statewide Uniform Guideline for determining child support set forth in Fam C §§4050–4076. Marriage of Cheriton (2001) 92 CA4th 269, 283, 111 CR2d 755. Under the guideline, courts are required to calculate child support according to an algebraic formula based on the parents’ incomes and custodial time with the child.

See Fam C §4055; 92 CA4th at 284; Marriage of Smith (2001) 90 CA4th 74, 80, 108 CR2d 537. The amount of child support established by the formula is presumed to be the correct amount of child support to be ordered. Fam C §4057(a). Under the guideline, courts no longer have the broad discretion in ordering child support that they had before its adoption in 1992. Now the determination of a child support obligation is a highly regulated area of the law, and the only discretion a court has is the discretion provided by statute or rule. Marriage of Cheriton, supra, 92 CA4th at 283; Marriage of Smith, supra, 90 CA4th at 81.

The guideline applies whether the court is ordering

• Permanent child support;

• Temporary child support (see §201.59);

• Expedited child support (see §201.60);

• Modification of an existing order for child support. See Marriage of Wittgrove (2004) 120 CA4th 1317, 1326, 16 CR3d 489;

Marriage of Laudeman (2001) 92 CA4th 1009, 1013, 112 CR2d 378 (see §201.63); or • “Family support” (i.e., combined child and spousal support) (see §201.61).

B. [§201.32] Principles in Implementing Guideline Courts are specifically directed to adhere to the following principles

in implementing the guideline:

§201.32 California Judges Benchguide 201–30

• A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. Fam C §4053(a).

• Parents are mutually responsible for their children’s support. Fam C §4053(b).

• The guideline takes into account each parent’s actual income and level of responsibility for the children. Fam C §4053(c).

• Each parent should pay for the children’s support according to that parent’s ability. Fam C §4053(d).

• The guideline places children’s interests as the state’s top priority.

Fam C §4053(e).

• Children should share in both parents’ standard of living, and child support may appropriately improve the standard of living of the custodial household to improve the children’s lives. Fam C §4053(f). See Marriage of Cheriton (2001) 92 CA4th 269, 292 n13, 111 CR2d 755 (children have right to share in lifestyle of high-earning parent even if parent chooses to live modestly).

— When a parent is wealthy, the children’s needs are measured by the parent’s current station in life, not by the children’s historic expenses or by their basic needs. 92 CA4th at 293, 297–298.

— Unlike spousal support awards that require a consideration of the parents’ standard of living during marriage, child support awards must reflect a minor child’s right to be maintained in a lifestyle and condition consonant with his or her parents’ position in society after dissolution of the marriage. Marriage of Kerr (1999) 77 CA4th 87, 95–96, 91 CR2d 374.

• Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes. Fam C §4053(g).

• Children’s financial needs should be met through private financial resources as much as possible. Fam C §4053(h).

• A parent who has primary physical responsibility for the children is presumed to contribute a significant portion of available resources for the children’s support. Fam C §4053(i).

• The guideline is intended to encourage fair and efficient settlements of conflicts between parents and to minimize litigation.

Fam C §4053(j).

201–31 Child Support and Spousal Support §201.34

• The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the amount of support mandated by the guideline formula. Fam C §4053(k).

• Child support orders must ensure that children actually receive fair, timely, and sufficient support that reflects the state’s high standard of living and high costs of raising children compared to other states. Fam C §4053(l).

C. Guideline Formula 1. [§201.33] General Parameters The Statewide Uniform Guideline algebraic formula for determining

child support is as follows (Fam C §4055(a), (b)(1)):

CS = K [HN - (H%) (TN)].

In which:

CS = the child support amount.

K = the amount of both parents’ income that is to be allocated for child support.

HN = the high earner’s net monthly disposable income.

H% = an approximate percentage of the time the high earner has or will have primary physical responsibility for the children compared to the other parent.

TN = the total net monthly disposable income of both parents.

 JUDICIAL TIP: The judge should have an understanding of the formula and the relationship of each of the factors. However, given the complexity of the 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.



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