Getting Child Support Orders in Your Family Law Case.
Whether you are getting a divorce or separating from a partner with whom you share a child or children, child support is often the most difficult issue to navigate.
It is important to recognize that support is viewed by the State of California as an entitlement of the children, and not of the receiving parent. The idea behind this is that it ensures the children enjoy a fairly consistent lifestyle in both households.
What is Guideline Support?
In the State of California, child support is based upon what is called the “guideline” calculation. This calculation takes into consideration how much each party makes, whether the income is taxable or non-taxable, tax deductions such as retirement contributions and property taxes, which parent gets the child tax credit, and how much time the child spends with each parent.
The calculation aims to evaluate the parties’ disposable income and allot some of it from the child support payor (generally the higher earning parent, but can also be the parent with significantly less timeshare than the other, regardless of income) to the child. If there are multiple children, the calculation program used will allot specific amounts to each child based on age.
Guideline support is calculated using Court approved computer programs that conforms with the equation set out in the California Family Code. There are several free versions available as well as paid software, including Dissomaster. If your child support case is being handled by the Department of Child Support Services, they use a proprietary program that also conforms to the law.
What if one parent receives inconsistent income or often receives large bonuses?
When a parent receives W-2 income, such as a salaried employee, it can be fairly easy to calculate income for the purposes of guideline support. However, if your income or the other parent’s income is inconsistent, such as a relator, independent contractor, or independent business owner, then the Court can employ other methods for setting support.
Further, there can be situations where a parent receives a regular base income but a few times a year gets a large bonus. There are methods for accounting for this income as well.
In 1990, the California courts decided a case titled Marriage of Ostler & Smith in which the support payor had a base salary, but also received stock and bonuses well above his base salary, but not in a consistent manner. The court determined that this additional income should also be considered for support. Rather than trying to predict what could be paid in the future, the Court determined that a set percentage of additional income above the payor’s regular salary would also be owed as support.
An important part of this determination is how often the amount will be determined and paid, often called a “true up.” If the payor has a low base salary and fluctuating income every month, then it may be appropriate to true up monthly. It can also be done quarterly, or yearly. This is entirely dependent upon your individual situation, and an attorney can help you decide what is most appropriate.
I have always been a stay at home parent, can the Court force me to return to work?
As with many family law issues, the answer to this question is it depends. Depending on the specific facts of your case, you may be required to search for work because both parents have an obligation to financially support their children.
Both parties’ income is included in the calculation and the Court does not like to see one parent bearing the entire cost of raising a family. However, the Court also recognizes that sometimes a parent has been out of the workforce and raising a family for quite some time. If you need time to re-enter the workforce, you may be able to take your time, but you must always be working toward employment by either taking classes to tune up your skills, networking to get your name out there, or evaluating what marketable skills you might have that will help you obtain employment.
If you do not make efforts to gain employment, the Court has the power to order you to become employed by using what is called a “seek work order” or “employment efforts order.”
How do I request Child Support in my case?
In Santa Clara County, you have two options for obtaining child support. You can file a motion under your family law case number or you can open a case with the Department of Child Support Services.
Information for the Department of Child Support Services can be found here: https://www.sccgov.org/sites/dcss/Pages/child-support-services.aspx