If you are going through a divorce and have children, the most pressing issue you will confront is assuring their well being. In addition to concerns about the welfare of one’s children, the financial implications of divorce can be enormous. What financial obligations will each parent have with respect to the children? What financial obligations will one have to an ex-spouse?
Going through a divorce is a trying time, and perhaps the most difficult experience one will face in a lifetime. Children involved can make the experience all the more difficult since parents put the needs of their children before themselves. It is important to have a grasp of all issues one will encounter in a divorce as early as possible in the divorce process so that appropriate strategy can be adopted.
To protect your children’s interests, as well as your own, you may need to create a trusted team of experts and advisors in place to guide you through the divorce process in court. While one can file for one’s own divorce, when children or support is an issue, it is normal to utilize professionals. Depending on the complexity of your divorce, your team will likely be comprised not only of attorneys, but possibly family counselors, psychologists, forensic accountants, and other potential experts that will render opinions on what is in the best interest of your children in terms of custody, the financial standard of living of the parties during the marriage, and what financial spousal and child support obligations the parties have. Of course, you will need your close family and friends supporting you as well.
Let us examine the basic law with respect to spousal and child support in California. Before reading further, the reader should review our articles on The Basics of Divorce Law in California and Child Custody and Visitation Under California Law.
The Basic Law:
When a married couple with children gets divorced, they have a legal obligation as parents to support their minor children. One of the parties may have a legal obligation to support the ex-spouse as well.
In California, child and spousal support amounts are calculated using guidelines developed by the State Legislature. Usually, judges use a computer program to calculate support amounts but ultimately the support amount is determined by the court which has some discretion. Many variables are plugged into the program to produce the final calculation. The statutory guidelines also set forth various other factors the court may consider in making child and spousal support orders, which are discussed in detail below.
Factors in Determination of Child Support Orders
California Family Code Section 3900 sets forth the obligation of parents to support minor children, “…in a manner suitable to the child’s circumstances,” and the duty exists regardless of the existence of a valid marriage.
The primary factors the court considers in making a child support order are the relative income/means of the parties, and the amount of time each parent spends with the children. Courts must adhere to the uniform child support guideline codified in California Family Code Section 4050 et seq.
The uniform guideline set forth the following governing principles (in addition to others not included below):
a) The parents’ support duty is commensurate with the parents’ economic circumstances, and both parents are mutually responsible for the support of their children.
b) The formula for determining the amount of support factors is each parent’s income and the level of responsibility for the children, as well as each parent’s ability to pay.
c) The support order should reflect the parents’ standard of living during the marriage, even when this benefits a particular parent. Significant disparities between the children’s living standards in the two homes should be minimized. Support orders should reflect the state’s high standard of living and high costs of raising children compared to other states.
d) The guideline sets forth a presumption that the parent having primary physical responsibility for the children contributes a significant portion of resources for the support of the children and this should be factored in when determining what the other parent should contribute.
e) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
f) Whether "fairness" permits the exercise of judicial discretion in fixing a particular child support award itself must be determined with reference to the statutory guideline factors and policy directives as applied to the parties' circumstances as a whole.
The guideline formula for computing child support is set forth in California Family Code Section 4055 (a). The child support amount is calculated as follows:
Child Support Amount = K [HN - (H%) (TN)]
K = a factor of both parent’s income allocated for child support as set forth in Ca Fam § 4055(b)(3). K will be (1+H%) or (2-H%) depending on the high earner’s percent of time having primary physical responsibility for the child.
HN = high earner's net monthly disposable income.
H% = the approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent.
TN = total net monthly disposable income of both parties.
If the formula results in a positive number, the high earner pays the low earner. If the formula results in a negative number, the low earner pays the high earner.
California Family Code Section 4050 et seq. also provides for two tiers of "add-on" child support amounts, including "mandatory" and "discretionary" add-on amounts.
Mandatory add-on items: The following expenses must be ordered as additional child support (California Family Code Section 4062(a)): (a) child care costs related to a parent’s employment or reasonably necessary education or training for employment skills; and (b) uninsured health care costs, meaning uninsured health care costs for the children.
Discretionary add-on items: The court may order the following items payable as additional child support (California Family Code Section 4062(b)): (a) costs related to the children's educational or other special needs; and (b) travel expenses for visitation.
Add on expenses are divided one-half to each parent, unless either parent requests a different apportionment and presents documentation showing a different apportionment would be more appropriate.
Child support orders may generally be modified upon application of a party until the child is a legal adult or until the order terminates. To succeed in modifying an order, the moving party must show that there have been significant changed circumstances, which include (a) an increase or decrease in the income of the party receiving support, (b) a modification of visitation resulting in an increase or decrease of visitation time, or (c) special needs of the children. A change in income is the most common reason for a requested modification by a party.
SPOUSAL SUPPORT ORDERS
An award of spousal support is not mandatory in divorce proceedings in California. In contrast to child support orders, the court has much broader discretion in making awards, denying awards, or limiting the amount and duration of a spousal support order based on the ability of the parties to provide for themselves.
Under California Family Code Section 4320 et seq., the court examines the parties’ circumstances with respect to the standard of living established during the marriage and the respective needs and abilities to pay for such standard of living. The court must consider fourteen statutory factors in making an order, but the decision in terms of amount and duration of support are in the discretion of the court when all is said and done. However, the court must utilize facts and evidence existing at the time the order is made in making an order, rather than speculating as to circumstances.
Because the circumstances of the parties in every dissolution action varies greatly, the court does not give equal weight to the statutory factors, and rather must arrive at a just and reasonable support order as determined by the court. The controlling factor in establishing the amount and duration of an award is the standard of living established during the marriage.
The primary factors the court considers under the California Family Code are as follows (in addition to others not included below and not always relevant):
a) The extent to which the parties’ respective earning capacities are sufficient to maintain the standard of living established during the marriage.
b) The extent to which the supported spouse contributed to the other spouse’s attainment of an education and/or career.
c) The supporting spouse’s ability to pay spousal support, taking into account his or her earning capacity, assets, etc.
d) The parties’ respective assets and obligations, including separate property.
e) The duration of the marriage.
f) The earning capacity of the supported spouse and ability to be employed without interfering with the best interest of dependent children in his or her custody.
g) The age and health of the parties.
h) Evidence of any history of domestic violence between the parties.
i) The balancing of the hardships to each party.
j) Any other just and equitable factors, (which is the court’s catch-all provision and includes any other fact that the court considers important to consider in developing appropriate spousal support.)
It is within the discretion of the court to not award any spousal support at all.
If there is no longer a need for support, or a significant change in the supporting party’s needs or ability to pay, proceedings to terminate or modify support are often commenced. The primary factor the court considers is changed circumstances. The court will evaluate the same factors it considers in making an initial order in determining whether the circumstances have changed in a manner that warrants a modification or termination of the order.
Where a spousal support order is fixed for a specific duration or is contingent upon a certain event, it will terminate at the end of such duration or the happening of such contingency.
A spousal support order will also terminate upon either party’s death or upon the supported party’s remarriage. This latter factor often results in recipients delaying remarriage and efforts by the supporting party to demonstrate that a defacto marriage has occurred so as to allow ending of support.
One element in the entry of more women into better paying employment in the workforce is the imposition more often of spousal support orders by which the ex-wife supports the ex husband. Further, the spouse who cares for the children to the extent of being unable to obtain income that would otherwise be available may expect the court to consider that factor in awarding spousal support in addition to child support.
Financial issues are just one of many difficult aspects in going through a divorce. It is important to remember that minimizing emotions over such issues will result in a swifter and likely more equitable resolution. It will also minimize the difficulties for any children of the marriage, which is of paramount importance, of course.
As in any major challenge in one’s life, it is critical to stay focused on what matters and to avoid letting emotions escalate what is already an extremely trying period in one’s life. Sadly, it is axiomatic in our legal system that it only takes one emotional party in a legal action to cause turmoil, delay and expense in the proceedings. See our article The Grudge Fight. Such grudge fights cannot always be avoided and when attempting to chart a course during these difficult times, it is vital to build up one’s own support group of friends, colleagues, attorneys, CPAs, family…and whatever other source of support one uses when times get tough.
One of our more successful business clients, in the midst of a brutal and prolonged custody and support battle found himself brooding on it on nights and weekends. He volunteered for a soup kitchen for the first time in his life and one could find him there most weekends. He once told the writer that it was perhaps the best decision he had made in the last decade. “I see these poor families, desperate to get by, often on drugs or alcohol, and my squabbling over money is put in perspective. I didn’t need a psychiatrist. I just needed to see what real anguish can be.”
The task may be simple and efficient if both spouses are reasonable, but if either is not, educate yourself, form your team of experts and for support, and realize that even if it seems to last forever, it will not…and if done correctly, will make a huge difference in your life and the life of your children.
These Articles are to give the reader a general description of certain areas of the law. Legal advice is necessary to apply these legal concepts to your particular situation. The Reader should obtain competent legal advice before relying on the Articles. Return to Articles Index Page