| "My gut feeling is that the current
guidelines are far from perfect. You know, well over 50%
of the people getting divorced in California are representing
themselves now. So, you have this godawful formula that
you have to run on a computer, in order to propose child support.
But, that premises that, (a )- most people are computer literate
and will have no trouble running it, and; (b) - most people have
access to the program. Unfortunately, a lot of people don't
even have computers, and the program to run it still hasn't been
put on the internet by the Judicial Council. So, of course,
you have people showing up at court with no proposed figure and
that just clogs up the system again." - Antonio A., Attorney at Law. |
Of course, the first thing you should
do is to try to find out. If you can't find out, you should
calculate his/her income at the federal minimum wage, based on
a 40 hour work week.
HOW LONG DOES THE CHILD-SUPPORT GO ON?
You pay child-support until the child
turns 18 or finishes high school. They threw in the part
about high school because a certain number of parents were stopping
payment at the 18th birthday, despite the fact that the child
was still in school. It's just there to see that kids don't
have to drop out to support themselves when they're in their senior
year. You can stop paying child-support before the 18th
birthday if your child becomes a legal adult by getting married
or joining the military. In some cases, where the child
is severely impaired mentally or physically, the support can go
on past the 18th birthday. You can
also agree, in a Marital Settlement Agreement, for the support
to go on past the 18th birthday and into college.
WHY DO I HAVE TO PAY THROUGH THE COURT SYSTEM INSTEAD OF JUST WRITING MY EX A CHECK?
Paying through the Court system is for the protection of both parties. When you pay through the system, you have a written record of your payments each month, so that your ex can never claim that you failed to support your child. Never, never ever make a child support payment directly to your ex-spouse.
| "I had a client who got caught in that trap. His ex-wife kept calling him up before the monthly payment was due and saying she was short on money. He was a very nice, but not very bright, guy and he'd give her the money in cash and not get any receipts. She turned around and claimed he was in arrears and he had to make all of those payments twice." Kevin G., Attorney at Law |
CHILD-SUPPORT FROM A PREVIOUS MARRIAGE?
The child support guidelines take
that into account. Your payment is
based on your net income, not your gross.
WHAT IF MY SPOUSE AND I AGREE ON AN AMOUNT FOR CHILD-SUPPORT THAT'S DIFFERENT FROM THE GUIDELINES?
The Judge has the authority to set support in an amount that's different from the guidelines if both parties agree to it. In many cases, the parent who isn't getting custody genuinely feels that the guidelines don't offer enough support and they want to pay more. The Court will always approve that.
In other cases, the husband and wife may agree to an amount that is less than the guidelines, but the Judge will take a good hard look at that. Judges are not comfortable straying from the guidelines unless there is some really substantial reason for doing so. By substantial, I do not mean, "Gee, I want to get married to another woman and we'll need the extra money," or "I don't want his damned money." Remember that you want your hearing to go as smoothly as possible, and the best way to accomplish that is to stick to the guidelines.
| "Proposing an amount that's under the guidelines is like painting a great big target on your face and handing the judge a gun. It's a sure fire way to get your case red-flagged." Pete K., Attorney at Law |
DO I HAVE PAY FOR HEALTH INSURANCE FOR THE KIDS?
I'M IN THE MILITARY. WHAT DO I DO ABOUT THE INSURANCE?
If you're in the military, your responsibilility
is to see that the kids get their I.D cards, so that they're covered
medically. They go on being military dependants whether
you divorce or not, so they're still elibible. Just go down to
your I.D. section, tell them you're getting divorced, and they'll
take it from there.
IS MY PAY-CHECK GOING TO BE GARNISHED?
It can be. One more outrageous example of the California Family Code treating people like criminals before they've done anything wrong.
We should note here
that the garnishment order can be served immediately.
If your spouse or the Judge wants it, it can go out the day of
the divorce. Always a good idea to let your employer know
about it in advance, so that they don't end up thinking you've
done something wrong.
| "We're in a transitional period with the garnishments. In the past, garnishments were associated with wrong-doing, with dead-beat Dads. If your boss got a garnishment order, it was almost a disgrace. There are so many states where they're virtually automatic, though, that they're fairly common-place by now. Hell, it's probable that your boss is having his own wages garnished." Don W. , Attorney at Law |
TOP
IF I'M PAYING ALL OF THIS CHILD-SUPPORT, DO I GET THE TAX DEDUCTION FOR THE KIDS?
IF MY EX-SPOUSE GETS REMARRIED, DOES MY CHILD-SUPPORT GO DOWN?
Nope.
They're your kids and your responsibility. Your child-support
is based on your income, not someone else's.
SUPPOSE I'M NOT MAKING THIS MUCH MONEY IN THE FUTURE AND I CAN'T AFFORD THIS AMOUNT OF SUPPORT?
Well, suppose you're a professional roofer and you're making pretty good money. Then one day you fall off a roof and break your back and you're confined to a wheel chair. You could then go back into Court and realistically tell the Judge that your ability to make money had been vastly diminished.
In some really extraordinary cases, they
can even go after your new spouses income or property if youve
chosen to be radically under-employed and your new spouse has
been abetting that.
| "I've seen a few legitimate cases along those lines. I had one client who was in an automobile accident and ended up as a paraplegic. Not only could he not pay child support, but he needed support himself. In the vast majority of cases, though, the curve goes the other way: people tend to be making more several years after the divorce, not less." Michael M., Attorney at Law |
Yes. You're under a Court order
to pay support and your spouse is under an order to provide visitation.
They're two separate orders and they're not linked together.
If your ex won't let you see the kids, the appropriate thing to
do is to go back into Court, not to disobey the Court yourself.
No, and many parents don't. Frequently after a divorce, the two parties realize that they need to work with each other on rearing the children and they decide on their own visitation schedules. The schedule is just there in case there are problems down the road. If your ex suddenly decides to start giving you a hard time about seeing the kids, you're guaranteed at least that much visitation.
| "Oh, yes, people start cooperating with each other, for the most part. It's normal for there to be a certain amount of anger and suspicion during a divorce. After the dust settles down, though, they work it out. Maybe Dad likes to take the kids to baseball games during the week and Mom has no problem with that. Or Mom just really needs a nice quiet weekend alone, so she asks Dad to take the kids, even though it's not on the visitation schedule. " Martha T., Attorney at Law |
There
is probably no issue in a divorce that is more likely to cause
problems than the emotions surrounding the children of the marriage.
In many cases, neither party has done anything wrong and
both parties are good, devoted parents. The
idea of suddenly having to see your children on a court ordered
schedule is heart breaking, both to the parents and to the children.
The idea of having wages garnished when you've always been
a responsible provider is infuriating. But,
its very important to keep a cool head and work together for the
sake of the children. Whether or not
you are husband and wife in the future, you will always
be your children's parents, and you will need to work together
for years to rear them into good, strong adults.
For
many years, there was a serious problem in the
Gradually,
the federal government and the individual states have built in
laws to regulate who actually has jurisdiction and to be sure
that law suits affecting the parent-child relationship are filed
in the appropriate courts. In most divorce cases in
Now,
lets talk about some cases where you might, or might not, run
into trouble with jurisdiction.
Okay, let's switch that around a little. Let's say that Jerry and Delores were married in
Now, six months is the residency requirement in
The Different
Types of Custody
In
order to understand it a little better, it might be good to talk
a little bit about the different kinds of custody.
In the average California divorce, both parents come out
of it with legal custody.. That means that the court continues
to recognize both of you as the legal parents fo your children.
Now, with joint custody it is still
usual for one parent to have physical custody, in that
he or she has the right to establish the primary residence of
the child and the child spends most of his/her time at that residence. But . . . joint custody also builds in
many rights for the parent who doesn't have physical custody that
weren't there before. They have full
rights to seek medical care, to consult with physicians and teachers,
to make normal medical decisions, etc. To
a much greater extent than before, parental rights are granted
jointly.
Many
parents will try to avoid the painful issue of parting with their
children by insisting that they should have, "pure,"
joint custody. In other words, what
they want is a finding from the court that they both have
the right to establish the residence of the child and they both
have full parental rights with no limitations at all.
If you had a situation like our great
grand parents did, then pure joint custody might actually make
sense. If you lived in one little
town, with one school district and neither one of you were ever
going to leave, there would be no reason at all that the children
couldn't spend Monday at Mom's house and Tuesday at Dad's.
When you translate that into modern life, however, it gets
a lot more complex.
How the
System Deals with Child Support
Looking
at the Child Support Guidelines
In the old days, child support orders might
vary wildly from county to county and judge to judge.
It was not unusual for every large county to have at least
one mean S.O.B. of a judge who handed out huge support orders.
With the guidelines, you at least know generally what your'e
going to be ordered to pay, and the judge is generally bound by
the rules.
If you live in one of the larger cities, you can usually run the program for free at the county law library. If you dont live in one of those cities, weve listed a couple of sites on the internet where you can run them for less than 15 bucks.
CS = K[HN
(H%)(TN)
where
CS
= child support
HN
= the higher earners net income
H%
= the amount of time that the higher earner will actually have
physical possession of the children
(TN)
= the total net earnings of both parents.
If
you really, really hate math, then you're probably starting to
feel a little sweaty and nauseated right now.
Take a break, wash your face, and come back when youve
calmed down. Or skip down to the section below about how to get
your computer printout.
Now, you may have noticed that we didn't mention what K stood
for. That's because it's variable.
It stands for the percentage of the parent's combined net
incomes that's going to child support, but it varies by H%, the
amount of time that the high earner will actually have possession
of the children. If the high earner
has possession of the children 50% or less of the time, then K
is equal to:
(1+H%)
times the Monthly Wage Fraction.
If
the high earner has possession of the children over 50% of the
time, then K is equal to:
(2-H%)
times the Monthly Wage Fraction.
And
now you're thinking, "What in the hell is the Monthly Wage
Fraction?" Well, here it is:
If
you're making $800.00 or less each month, your monthly wage fraction
is .20 + the total net earnings of both parents, divided by 16,000.
If
you're making between $800.00 and $6,666.00 then your wage fraction
is just plain .25.
If
you're making between $6, 667.00 and $10,000.00 each month, then
your wage fraction is .10+1000 divided by the total net earnings
of both parties.
If
you're making over $10,000.00 each month, then your wage fraction
is .12 +800 divided by the total net earnings of both parties.
We
swear were not making this up. This
is actually what the California Family Code says.
And people say lawyers make things complicated.
Ha!
For some reason, the state government hasn't
come up with some incredibly
(1)
Time Sharing Arrangements
|
|
|
Days |
% |
|
a. |
1 weekend
per mo. |
24 |
7 |
|
b. |
1 extended
weekend per mo. |
36 |
10 |
|
c. |
2 weekends/mo |
48 |
13 |
|
d. |
1 weekend/mo
+ 1 evening/wk |
50 |
14 |
|
e. |
Alternate
weekends |
52 |
14 |
|
f. |
Alternate
weekends + 2 wks summer |
67 |
18 |
|
g. |
Alternate
weekends & ½ holidays + 2 wks summer |
69 |
19 |
|
|
(If CP has
2 wks over summer too, then) |
67 |
18 |
|
h. |
Two extended
weekends/month |
72 |
20 |
|
i. |
Alternate
weekends + 1 evening/wk |
78 |
21 |
|
j. |
Alternate
weekends + 1 overnight/wk |
104 |
28 |
|
k. |
Alternate
extended weekends |
78 |
21 |
|
l. |
Alternate
weekends & ½ holidays + 4 wks summer, (with alternating
weekends continuing in summer, and makeup if weekends lost due
to the 4 weeks) |
77 |
21 |
|
m. |
Alternate
weekends & ½ holidays + 4 weeks summer (with no alternating
weekends all summer) |
75 |
21 |
|
n. |
Alternate
weekends & ½ holidays + ½ summer (with or without
alternate weekends in summer) |
82 |
22 |
|
o. |
Alternate
extended weekends + 1 evening/wk |
104 |
28 |
|
p. |
Alternate
extended weekends + 1 overnight/wk |
130 |
36 |
|
q. |
Alternate
weekends & ½ holidays, 1 evening/wk, + 4 wks summer
(with alternating weekends continuing in summer, and makeup if
weekends lost due to the 4 weeks) |
103 |
28 |
|
r. |
Alternate
weekends and 1 evening/wk when school is in session, + ½
school vacations |
104 |
28 |
|
s. |
Three days/wk |
156 |
43 |
|
t. |
First, third,
and fifth weekends |
56 |
15 |
|
u. |
First, third,
fifth, extended weekends |
84 |
23 |
|
v. |
First, third,
and alternate fifth weekends |
52 |
14 |
|
w. |
First, third,
alternate fifth extended weekends |
78 |
21 |
(Eff.
(2)
Definitions
a.
Weekend - 6 p.m. Friday 6 p.m. Sunday (2 days)
b. Extended Weekend - School closing Fri. school opening Mon.
(3 nights, 2 days)
c. 1st & 2nd; or 2nd & 4th Weekends - Same as Two Weekends
per month
d. 1st & 3rd, & alternating 5th Weekends - Same as Alternate
Weekends
e. Afternoon - After school until evening without dinner (1/4
day)
f. Evening - After school after dinner (½ day; 1 eve./wk=26
days/year)
g. Overnight - School close mid-week School opening next day (1
day) (1 day; 1 overnight/week = 52 days/year)
h. Holidays - New Years, Presidents Day, Easter, Memorial Day,
Mothers Day or Fathers Day, July 4, Labor Day, Thanksgiving (2
days), Christmas, (½ holidays = 5 days/year)
i. Summer - 10 weeks (70) days; some schools may vary, such as
those using an all year calendar
j. School Vacations - Summer, 2 wks Christmas, 1 wk Spring, (13
wks/year; ½ vacations = 45.5 days/year, not counting subtraction
of NCPs ordinary alternate weekend and mid-week visits and
CPs cross visits)
Okay, so now weve got all of the variables that
we need. Let's look at an example
of how it would work. Bob and Lu are
getting divorced and they have two kids. Bob's net monthly pay is $4,000.00 and
Lu's is $3,000.00, so that makes Bob the high earner, with a combined
monthly net of $7,000.00. Lu's getting
custody and they've agreed on a visitation package like the one
listed as," l", in the time share chart.
That's every other weekend, half the holidays and 4 weeks
in the summer and that's 21% of the time. So, we take the basic
formula and fill in their information:
CS = K[HN
(H%)(TN)]
CS
= K[4000 (.21)(7000)]
And now we have to figure out K.
(1+H%)
times the Monthly Wage Fraction because Bob is going to have possession
of the children less than 50% of the time.
So, K=(1+.21)=1.21 times the monthly wage fraction which
is .25 and that equals 0.3025
So . . .
CS = 0.3025[4000
(.21)(7000)]
CS = 0.3025(4000
1470)
CS = 0.3025(2530)
CS = 765.32
But
wait . . . just when you thought it was safe to go back in the
water . . . there's another chart you need.
If
you have 2 children, you multiply CS by 1.6
4 children by 2.3
5 children by 2.5
If you have more than six children you're probably
too tired to do any of this anyway, so well just stop there.
So, Bob's total child support is going to be 765.32 X 1.6 which
equals 1224.52.
Getting
the Child Support Print Out
Now, we showed you all of that gobbledeegook just so you'd know what information you need to get your computer printout to present to the court. Even if you're a math whiz or a masochist, you can't do your own calculations by hand. You've got to have a print out from a program certified by the California Judicial Council.
SupportScan
They
charge 15 dollars for the first three times that you use the calculator
and 5 dollars for each time thereafter. In
other words, if you used it 4 times you'd be charged 20 bucks. It also appears to be pretty user friendly:
you're only charged when you make the calculation so if
you have to back out of it because you don't have all of the information
that you need, theres no charge.
Elk
Grove Paralegal
http://www.lagunaparalegal.com
This
is a paralegal service that does the calculations for you on their
computer. They charge $20.00.
Brian
Levy, Attorney at Law
http://www.calattorney.net/family/support/html
This
is an attorney offering what are called, "unbundled services." In other words, you can go to get some
of the things done that you need on your divorce, without having
to hire an attorney for the whole shebang.
They charge $29.95 to run the calculation.
You're not going to submit the actual printout until
the end of the divorce, when you file your judgment with the court.
It's important to have it at the beginning, though, because
you need a fairly accurate idea of what the child support is going
to be, in order to inform your spouse.
As we said before, you have a great deal of latitude
in setting up your visitation package. If you're doing a Marital Settlement Agreement,
you can set up virtually anything you like, as long as its reasonable.
By, reasonable, we mean that it doesn't put an unreasonable
burden on the children or either parent.
For instance, it's not unusual to hear the parent who is
not getting possession of the child say something like, "Well,
if she's got the child all of the time, why shouldn't I have visitation
every single weekend, every single holiday, and all summer long?"
The problem with that approach, of course, is that the
parent with possession ends up having all of the responsible time
and none of the fun time.
Here's an example of a normal visitation package.
Sally is the parent with full possession of the child.
Jim picks the child up at
Jim also gets the child every other major holiday, every other year. In other words, he gets the child for a week at Thanksgiving one year and a week at Christmas the next. He gets the child for every Father's Day and on her birthday every other year. And, he gets the child for 60 days in the summer, every summer.
That's the kind of a schedule that works very well
for two people who live fairly close together.
But suppose Jim lives two hundred miles away?
Obviously, he's not going to be able to pick the child
up on Wednesday evenings and bring her to school on Thursdays.
Even the weekend visitations get very problematic with
that much driving involved. In that kind of a situation, you might
want to increase the summertime visitation to compensate Jim for
all of the times that he's not able to see his daughter during
the rest of the year. If Jim moves back into the area, Sally
can always go back in to court and modify the visitation schedule
again.
Supervised
Visitation, No Visitation, Counselors and Mediators
In some very rare cases, there may be reason to
ask for visitation to be supervised, or even for there to be no
visitation at all. Those cases have
to involve something extremely serious, such as child abuse or
non-recovering alcoholism or drug addiction.
In other words, you have to be able to prove that
the other parent is a severe and continuing threat to the childs
welfare.
Unfortunately, lawyers do see a certain number of
requests for supervised visitation that aren't based on real threats.
There are new mothers out there, for instance, who feel
that men just aren't bright enough to figure out how to put on
a diaper or heat milk. There are men
out there who feel that their ex-wives having sex with someone
in the same house as their child is some kind of terrible threat
to the child's morality. And, the
best advice that lawyers can give in those circumstances is, "Get
over it."
If the parents absolutely can't cooperate on a visitation
schedule, or there are allegations of some sort of a threat to
the children, a judge has a couple of options in
If there are indications of something seriously
wrong, a judge can also order the parents to see a counselor for
therapy, for up to a year. That's
basically saying, "For the sake of the kids, you need to
get your heads together and I'm going to see that you do."
If neither one of those solutions work out, you
can, of course, have a contested case. You go in front of the judge, with or
without lawyers, and you present your evidence and the judge enters
his/her orders. In cases where there really is a threat to the
children, you may very well end up with some sort of restricted
visitation, but it has to be proven beyond a shadow of a doubt.
In other words, you can't just say, "Well, I think
he drinks too much." You've got
to have evidence of DUIs and arrests for public intoxication.
In cases where there is no such evidence, you're going to end up with exactly what you would have gotten if youd been sensible and cooperated with each other. The only difference is that youll probably be out a lot of money.