Child and Spousal Support

1. "How much temporary spousal support and child support will I have to pay (or be entitled to receive)?"

Judges are bound by established statewide guidelines in setting child support and will usually follow those same guidelines in setting temporary spousal support.  Parties are required to exchange with each other completed forms called Income and Expense Declarations, their last three pay stubs (or profit and loss statements, if they are self-employed), and their tax returns.  Attorneys and judges use computer programs, including DissoMaster (Sonoma County) and SupporTax (Marin County), to calculate temporary support.

Spousal support (but not child support) is taxable to the recipient spouse and tax deductible by the payor spouse.

Two primary factors in calculating support are each party’s gross monthly income and the percentage of time each parent has custody of the children.  If a parent has a small percentage of time with the children, the amount of child support can be substantial.  There can be serious disputes regarding between parties regarding how much each of them earns (or “should” earn) and how much time each has (or should have) the children in their car.

Two examples of temporary child and spousal support calculations using the DissoMaster program are shown below.  Both examples have the husband earning $4,000 gross per month, and the wife earning $3,000 gross per month with the husband paying $500 per month in health insurance costs.  The wife is residing in the family home with the parties’ two children and she is paying the mortgage interest of $1,000 per month and property taxes of $400 per month.  In the first example, the husband has 25% timeshare with the two children, and his total support obligation per month is $748 per month.  In the second example, the husband has the children 50% of the time (49.99%) and his total support obligation is $57 per month.

Dissomaster Report 1

Dissomaster Report 2

The amount of temporary child and spousal support can vary widely depending on the income of the parties, the amount of time each parent has the children in their care, which parent is given the dependency exemptions for the children, tax filing status, and other factors.  The court may also order a spouse to pay community debts (such as the monthly mortgage payment, credit cards, car loan payments) in lieu of, or in addition to, making a spousal support order.  You will find it helpful to consult with a family law attorney who can run various calculations and scenarios for you.

You and your spouse can exchange support calculations and attempt to agree on the amount of support, including an amount that is different than the guideline amount, as well as how the children will be covered for health insurance, extracurricular activities, and other expenses.  The interrelated issues of custody and support can become overwhelming.  If you need to go to court, an experienced family law attorney can help you through the process.

It may become challenging to establish a parent’s true income when they are self-employed and claiming certain “business expenses” which may not be legitimate, or if a parent is working “under the table” for cash.  Your attorney can help you prove the other party’s income, including by conducting discovery to obtain additional documents and information, subpoenaing records, and analyzing tax returns are arguing for “add backs” to a self-employed parent’s income.

Another problem is where a party is capable of working but chooses not to work or even quits their job voluntarily.  You can offer evidence showing how much the party has earned at their former jobs, as well as their work history, education, job skills, and the fact there are jobs available for which that parent is qualified.  You can also compel them to undergo a vocational evaluation where they undergo testing to determine the type of work they are best suited for, how much education they will need to be prepared for a certain type of work, the availability of jobs, and how much they could expect to earn.  If the parent refuses to take reasonable steps to look for work, the court can impute income to that parent when calculating support.  However, if they have been out of work for a long time or do not have strong job skills, the court may impute only minimum wage.

Also, if a party has an income-producing asset, such as rental property or a stock account, the income from that asset will be included in the parent’s gross monthly income.  Also, if a party receives free housing as part of their employment compensation, the value of the housing can be imputed as additional income to that party.

2. "Who will pay for the children's health care costs, child care expenses, extracurricular activities, private school tuition and college?"

In most cases parents will each be required to pay one-half of child care expenses that are incurred for the purpose of enabling the parents to work and/or go to pursue their education (e.g. vocational training).  Both parents will also be required to pay one-half of the children’s out-of-pocket health care costs.  If one parent has health insurance through their employment, that parent will keep the children on their plan as long as it is available at a reasonable cost or no cost, and if the employer deducts the health insurance costs from that parent’s pay, that cost will be deducted from that parent’s income in the DissoMaster or SupporTax calculation.

Parents must agree in advance if they want the other parent to help pay for the children’s extracurricular activities and/or for private school.  Otherwise, the parent who enrolls the child in a class or activity will be required to pay for it.

Parent have no legal obligation to help pay for their children’s college tuition or related expenses, but they can enter into an agreement with each to help pay those expenses if both wish to do so.

3. "How long do I have to pay support (or how long am I entitled to receive support)?"

Child support usually continues for each minor child until that child reaches the age of majority under California law (18), dies, marries, or becomes emancipated, but if a child has obtained age 18, is unmarried, is not self-supporting and is attending high school on a full-time basis, child support continues until the child completes the 12th grade or obtains age 19, whichever first occurs.  In some cases where an adult child is disabled and cannot work, child support can continue into adulthood.

Spousal support generally continues to be paid by the higher earning spouse to the lower earning spouse for one-half the length of the marriage when the marriage is less than 10 years in duration.  For example, if the duration of the marriage was six years, spousal support will be paid for three years.  If the marriage is less than 10 years in duration, then the supported party has a duty to become self-supporting within a reasonable period of time, which is generally considered to be one-half the length of the marriage.

If the marriage is over 10 years in duration, it is considered to be a “long-term” marriage under California law.  In that case, spousal support may be payable for a much longer period of time than just half the length of the marriage.  In this scenario, the parties may want to agree that the supported spouse will receive a lump sum payment and/or a greater share of the community property in exchange for a full waiver of their right to receive spousal support.  Such an agreement is often desirable because it extinguishes any ties between the parties.

After the divorce or custody case is final, the amount of child support can be modified if there is a change in circumstances, such as one or both parties earning more or less money, a change in how much time each party spends with the children, and other changes.

When the divorce (or domestic partnership case) is final, the parties will either agree on the amount and duration of “permanent spousal support” or if they cannot agree, the judge will decide those issues.  “Temporary spousal support” is paid during the period between the date of separation through the date the dissolution becomes final, and the amount of “temporary spousal support” is usually determined using the DissoMaster or SupporTax programs, but that is not the case when setting t he amount of “permanent spousal support.”  The amount of permanent support is almost always less than the amount of temporary spousal support.

When it is time to determine the amount and duration of “permanent spousal support,” the computer programs are disregarded and the factors in Family Code Section 4320 control:


            “Family Code Section 4320:

In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) The extent to which the earning capacity of each party is sufficient to    maintain the standard of living established during the marriage, taking into   account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required 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 the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting

(c) 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.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) 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.

(h) The age and health of the parties.

(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties including, but not limited to, consideration of emotional  distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period of time.  Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage.  However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse and the elimination of the award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.”