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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Child Support: What Bay Area Families Need to Know

How is child support calculated?

Child support is calculated pursuant to a statutory algorithm, which takes into consideration the percentage of time each parent has physical custody of the children, and the incomes of the custodial parent and the noncustodial parent. It is based on the gross income of the parties, and the algorithm takes into account the tax deductions and their consequences, and therefore, the tax filing status of each party is important, as well as is the number of dependents claimed, including who gets to claim the minor as a dependent and who gets the head-of-household status tax credit. An experienced Alameda County child custody lawyer can help you better understand how support is calculated. There is also a Child Support Calculator available online.

The main factors in calculating child support are percentage of visitation/timeshare and income.

Thus, the more custodial time one has the less you would be paying, or the more you would be receiving for child support. And generally speaking, the more money one makes, the more you would be paying or the less you would be receiving in Child support.

Where 0% visitation by Non-custodial parent, income of custodial parent irrelevant.

One interesting aspect of the algorithm is that where there is 0% visitation by the noncustodial parent the income of the custodial parent is not relevant, and an increase or decrease in the custodial parent's income does not affect the amount of child support. The reason behind this is the theoretical underpinning that custodial time is deemed to be an aspect of providing support. Therefore you're either providing support by way of monetary payment, or providing food and lodging for the child during your custodial time.

The Court cannot vary from the statutory guideline amount.

The court is not allowed to vary from the guideline child support amount in almost all cases, even despite obvious economic hardship to the payor parent given that party's expenses. Thus, it is not helpful to argue that one cannot afford to pay the guideline amount. However, the parties may agree to a non-guideline amount.

Court can allow certain expenses as well as certain "hardship" expenses to be deducted from Income.

Specific allowable expense deductions include: Support paid under court order for children of another relationship; travel expenses for visitation, unreimbursed child care expenses required in order for the parent to work, and special educational expenses or other special needs of the children. Hardship expenses recognized by the courts include: expenses for children of another relationship if living with the payor parent, extraordinary health care expenses, and major losses not covered by insurance. The hardship caused by these expenses must be "extreme."

Childcare expenses are usually split 50/50.

Childcare expenses that are required in order for a party to work, seek work, or obtain training for work are usually split equally, however, the court does have the power to apportion child care expenses according to the relative incomes of the parties. In practice, such expenses are usually split equally unless the incomes are very disparate, such that it would be unfair to order and equal split.

Duration of Child support.

By law, child support continues until the Child dies, the child is emancipated, or the child reaches the age of 18 (except that an unemancipated 18-year-old unmarried child, who is a full-time high school student and is not self-supporting, shall be entitled to continued support until the completion of the 12th grade or attaining the age of 19, whichever first occurs).

Although child support terminates by operation of law upon the happening of these contingencies, a wage garnishment for child support will continue until actually modified by court order. [And then the paying parent will have to seek reimbursement for the overpayments, and the courts have discretion to grant or deny reimbursement].

The court does have authority to order child support for a child beyond the age of 18 if the child is mentally or physically disabled, and is therefore unable to support themselves.

Tax consequences for Child support.

Child support payments are not deductible from income, nor are they income to the recipient for income tax purposes. However, child support can be taken into consideration, along with custodial time, in determining who gets to claim the child as a dependent, plus who gets to file as "head of household". The general rule is the parent providing more than 50% of the support of the child will have those benefits. These tax benefits can be significant.

The parties can agree who will get the deduction and tax filing status, regardless of who would otherwise have that right.

Changing a support order.

Child Support can be modified at any time, either before trial, or after judgment, upon a showing of changed circumstances. "Changed circumstances" in this context refers to an increase or decrease in either party's income, or change in custodial timeshare.

Agreements regarding Child support and child support arrears.

The parties cannot agree to waive child support; but they are free to agree on a non-guideline amount; however they must assure the court that the child's needs will be met by the agreed amount. In addition, non-guideline support can be changed at any time without a showing of changed circumstances. The parties may also settle child support arrears for less than owed, [although there are significant nuances to this issue, in practice, parties often settle arrears for less than owed].

Can the court consider new spouse or partner income in calculating support? No.

After the parties are divorced and either party remarries, his or her new spouse's income [or assets] cannot be considered in determining child support. Thus, the new partner or spouse's income cannot be added to the party's income to calculate how much that person should pay or receive.

Considerations and timing a request for support.

The court can usually only order child support from the date of filing of the Request for child support, so don't wait to seek child support.

Contact an Experienced Northern California Family Law Attorney - FREE Initial Consultation

To learn more about your specific child support matter, please contact Divorce & Family Law Attorney Martin "Jamie" Elmer today at (510) 644-2411. Initial consultations are free. Our Law Office is located in Berkeley, California, and we serve clients in Alameda County, Contra Costa County, Solano County, Marin County, and other communities throughout the Bay Area.