In this podcast, Certified Family Law Specialist David Lederman discusses California child support and parents’ legal obligation to their children, a hot topic for many parents during and after the divorce process.
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Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: David Lederman, Certified Family Law Specialist
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Read the Transcript of this Podcast Below.
California Child Support
Intro: This podcast will focus on child support in California – a hot topic for many parents during and after the divorce process. My name is Diana Shepherd, and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. Contra Costa County divorce attorney David M. Lederman is with me to talk about “Child Support: A Parent’s Obligation to their Children.” The National Association of Distinguished Counsel has named him a “Nation’s Top Attorney” every year since 2015 – an honor awarded to less than 1% of practicing attorneys in the United States. He has handled cases involving self-employed parents, those with hidden income, and those whose incomes vary widely from year to year – analyzing the validity of income figures and expenses used to calculate child support.
Diana Shepherd: David, let’s start with the child support guidelines. Are they meant to cover all expenses related to children? How do they work?
David Lederman: No, they’re not meant to cover all expenses: what they’re meant to do is to give the child the ability to share in the lifestyles of both of their parents. Both parents have an obligation to support their child to the best of their abilities. Just because somebody is receiving support doesn’t mean it will come close to covering all of the expenses for the child. The California Child Support Guideline is just that: a mandatory guideline calculation. By mandatory guideline calculation, what we’re talking about is a family code statute that has an algebraic algorithm. We use support programs that run this algebraic formula to determine what the proper amount of child support should be.
Since the guideline is a mandatory amount, it can deviate the very lower income figures from parents, it could deviate the very higher income levels for a parent, but it’s the presumptively correct formula. It weighs two primary factors. One is both parents’ respective incomes, of course tax effected. The program’s sophisticated to the point that it runs tax calculations. You could literally print the 1040 off this program if you needed to, although, I would still seek the assistance of a tax planner to do my 1040s.
It also takes into consideration the parties’ respective time share: the amount of time they spend with the child. When you hear people arguing or disputing the amount of time share, it’s not really a custody issue, it’s really the number that goes into the formula to calculate child support. It’s a pretty significant factor because if you have a zero percent timeshare, you’re going to be paying the highest amount of child support. And if you have a 50-50 schedule, you’ll be paying the lowest amount of child support because the presumption is that while the child is with you, you’re already paying the child’s expenses, so support is reduced taking that into consideration.
Is child support taxable in California?
No. It is a cash aid. It goes from parent to parent and it is not reflected in the tax returns at all. It’s not tax deductible for the payer, and the recipient does not pay taxes on it.
When does child support typically end?
It ends essentially one of three times: if a child passes, or a parent passes, or if the child is age 18 or 19 and is still in high school.
Are there any reasons why it might be extended past that? For instance, I’m thinking of a special-needs child…
Yes, it can be extended. Although, if it’s a special needs child, you’re probably going to be taking a trip through the guardianship process, and they’ll be a guardianship issue for the adult child. The family code does allow for the payment of support for a child with special needs.
What happens to child support if the payer dies or has to stop work due to illness or injury?
If the payer dies, support’s going to end. If he or she has to stop work due to illness or injury, nothing happens unless and until the parent who’s paying support files a request with the court to modify child support. Child support is modifiable to the date that the person requesting it has made that request to the court to modify it. Until that event happens, it doesn’t change regardless of the circumstances – except of course for death.
What can the recipient do to ensure that child support is paid on time and in full?
The recipient can, and has a right to, seek a wage assignment. Wage assignments in California are collected through a central processing location called the State Disbursement Unit. They collect all of the child support payments throughout the state, and then disburse it to the recipients – either by transfer or they can get a debit card like a credit card to use. It links in to their child support payments, to access the support. There’s a little bit of a delay when doing it that way, but that’s what’s required.
I guess that assumes that the payer has a full time job, something that you can see how much they’re earning, and the wages are garnished from that. What about if they’re self-employed in a cash-based industry? Does that make it more difficult?
Yes, of course. If there’s no payer, if there’s no employer, you can’t get the wage assignment. Then what you’re looking at is self-reporting, self-payment, or setting up levies. If somebody’s owed child support, that doesn’t disappear. A child support arrearage is owed until paid. The passage of time is not a defense. At some point in time, it’s probably going to get paid through levying of bank accounts. If you wait until a certain arrears is built up, and then you start levying on assets, bank accounts, you put a lien on a house, a judgment lien. There’s contempt of court, if they’ve got the ability and they’re just not paying it. You can ask the court to put them in jail for non-compliance. There are ways to put pressure on the recipient to compel them to cooperate with their support obligation.
What about if the recipient of child support withholds visitation? Can the payer withhold child support payments until they get their court-ordered visitation?
That brings up the old adage, “Two wrongs don’t make a right.” A person should not be withholding visitation because they’re not getting child support. There’s a court order, and parties are expected to comply with court orders. They’re not suggestions. They’re not recommendations. If a party is not complying with a court order, you can seek the assistance of the court to enforce the order – either to take custody away from the parent who is withholding the visitation, or to have the police come to compel the exchange of the child. Or again, contempt charges for not complying with the court order. If somebody has an obligation to pay support, same thing. They’ve got to pay that support because that as well is a court order. If they don’t pay, then they expose themselves to the same penalties that the other offending party exposed themselves to.
Can divorcing spouses agree that neither will pay child support to the other?
Sure! Parents can agree to do almost anything they want, even to not pay child support to the other. The problem with that is that it’s modifiable. The state has an interest in ensuring that children are supported. Even if you reach an agreement that says “We’re not going to pay child support to each other,” if the circumstance arises that there’s a need for it, the court can certainly grant a request to order a support order.
Can a parent sign away the child’s right to receive child support?
No. The state would not allow that. Let’s compare this to the issue of spousal support. A parent who has been staying at home has a right to get spousal support from the employed parent – or husband, wife, whatever. They can waive that and that would be a permanent waiver. They can waive their right to ever go back and get spousal support from the other parent. You can’t do that with child support. And you can’t do that because the public policy of the state of California is that while you can agree not take it for the moment, it’s not your right to waive, it’s a benefit for the child. You can’t waive that child’s rights to support.
Can someone reduce his or her California child support payments if their child is staying with them for an extended period during summer vacation for example?
Let’s assume for a second that this is in compliance with a court order. The court order says the child is going to live with mom during the school year, and then dad lives in a different state, and child will live with dad during the summer, which is an extended period of time. When we determine the time share, for the purpose of calculating child support, it’s based on the annual. That three month period that one parent has a child, the extended period, is already included in the support calculation. If there’s a modification, and there’s a change of the schedule, then that parent has a right to ask to modify support to reflect the change of the time share.
After divorce, are both parents responsible for paying for college for their children?
Not at all. When the kids are adults, they’re adults. There is no obligation to pay support beyond high school graduation or age 18. Most parents want their kids to go to college. Many parents will work out an agreement as part of their dissolution – as part of their divorce – that’s going to require one parent to pay for college for the child. If you reach an agreement that one parent is going to pay for college, the court will enforce it, but the court won’t give either parent that obligation because it’s beyond the court’s jurisdiction. Again, unless the parents give the court that authority voluntarily.
Have you seen cases where parents might make part of their dissolution agreement that they will each put in so much towards a plan for college later on?
Of course. In fact, let’s say there’s $20,000 in dispute between the parents, and the parties are really entrenched in their position. One way around that is to say “Well, there’s $20,000 at issue here. Why don’t we just take the $20,000 and put it into a 529 for the kids?” Everybody benefits. There’s the anticipation the child is going to go to school, the child’s going to need the money. It’s now going to the child versus going to their parent, and that typically adds some grease to the skids to help the parties reach that common ground, and reach a global settlement. So, yes. Parents do that, or we do that as a negotiation tactic fairly frequently.
Can child support be increased or reduced if circumstances of both or either parent change?
California child support can always be modified based on changed circumstances – however, it doesn’t change automatically. If there is a change of circumstances, then the party affected by the change needs to file a request with the court. Again, the court has jurisdiction to modify a support order from the date that request is made of it and served in it as the other side. Just because there’s a change of circumstances doesn’t mean the support automatically changes: somebody needs to take the next step and ask to modify it. There’s an incentive here to get to the courthouse here earlier rather than later because to the extent that there’s delay, that’s just a loss of the time that the court can modify the order reflecting the change of circumstance.
Is there any time that the court will look at the change in circumstance and say “Well, you made this decision on yourself” – as in I quit my job and now I can’t pay child support. What would happen in that case? Would the court still say you have to pay it anyway, even though you don’t have a job anymore?
The court very well could do that, and I think should, if you look at it from a philosophical perspective. The reality is both parties have an obligation to support the kid to the best of their ability. If a parent has a job that they give up for the purposes of avoiding child support, it’s most likely that a court’s going to impute that income to the parent who has left the job that enabled them to pay support.
How about lottery winnings? We had that big lottery win recently; does a huge lottery win constitute a change in circumstances such that California child support would actually be increased dramatically?
Sure it could. There’s a couple of ways to look at it. The family code tracks the Internal Revenue code as far as what is income available support. One is to have that as part of a one-off, earnings in one year, and base support on that for a year. The problem is there’s probably more income being generated by the corpus of the lottery winnings, and that’s what would be used – or should be used – as a basis of income available for the support. Whatever the source of the income is – whether it’s lottery winnings or a huge gift from an estate – all income is income available for the support. Even money sitting in a savings account, generating interest – that goes into the support calculation as income available for support. And yes, if there’s a change of circumstance where there is more income available, the court can modify an order based on that.
Diana Shepherd: My guest for this podcast has been Contra Costa County divorce attorney David Lederman, who dedicates 100% of his practice to Family Law & Domestic Relations. Certified as a Specialist in Family Law by the State Bar of California, David is currently a Director for the Association of Certified Family Law Specialists and a frequent speaker and writer on family law topics. The team of seasoned child support attorneys at the Law Offices of David M. Lederman will help you figure out if you need to deviate from the guideline amount to meet the financial needs of your children. If you have questions about California child support, visit www.ledermanlaw.net.