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SAN DIEGO FAMILY LAW SERVICES
Child Support:
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:
(a) Income from commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment benefits, social security benefits and spousal support actually received from another person;
(b) Income from a business proprietorship, based on gross receipts;
(c) The Court may also include employee benefits taking into consideration the benefit to the employee and any reduction in living expenses;
(d) Lottery winnings;
(e) Federal benefits.
3. Excluded from gross income are:
(a) Income from child support payments received from another person;
(b) Income from public assistance.
Note that under special circumstances, a party who is a low wage earner AND is capable of earning more may be charged with "imputed income."
If the Court believes that one parent has voluntarily reduced his or her wages, no matter how justified, it may compute child support based upon that parent's "imputed income" -- the amount they could be earning.
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.
Earning Capacity
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.
Child Support Options
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
FOR ASSISTANCE WITH FAMILY LAW IN SAN DIEGO
CALL TOM HUGUENOR TODAY AT 858-546-4868
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