Money can’t buy happiness, but it can definitely make things easier. This page explains the basic concepts you need to know about support in your California family law case. At the bottom of the page you’ll find answers to child and spousal support FAQ’s.
Child Support
Child support is mandatory in California. Both parents are required to support their child financially based on their ability to pay and the amount of time they spend with the children. The goal of child support is to equalize the child’s standard of living across the parents’ homes. The child should not stay in a mansion with one parent and a motel with the other, to give an extreme example. While it seems unfair, the less time you get with your child, the more you may owe in child support. The converse is also true: if you obtain more custody time, your child support obligation should decrease.
Child support can be ordered before your divorce is final. A final order can also be modified even years later based on changed circumstances, for example, if you lose your job or you obtain more custody time. You can use this free online calculator to estimate of the amount of monthly child support you will owe or your child’s other partner will owe you. You can also get help from child support services, an attorney, or both to obtain child support or attempt to reduce what you have to pay.
While child-support is based on a math formula in California, you can influence the amount you owe or receive by bringing certain information to the court’s attention.
Ways to Reduce Child Support
- Get more custody time: You are paying for your children’s needs while they are physically in your custody. This reduces the money your former partner needs to pay for the children’s needs. Thus, increasing the amount of time your child is in your physical custody decreases the support owed to the other parent.
- Have more children: If you are supporting more dependents, your child support obligation will decrease, as you need more income to support the other children.
- Earn less money: This is probably not a goal you should set, but if your income decreases, you will owe less child support and should request a modification. If the judge determines you are purposely earning less than you are capable of, however, and it is not in the children’s best interest for you to do so, the judge will calculate support based on what your income should be rather than what it is.
- Request a Hardship Reduction: The family court can deviate from child support guidelines if you suffer a “catastrophic” loss not covered by insurance or if you are responsible for “extraordinary” healthcare expenses, per Family Code 4071.
- Show You Cover More Expenses: Your child support order must factor in how much you pay for your child’s health insurance. The judge should also take into consideration school expenses you cover, travel expenses for custody exchanges, and childcare costs like daycare and after-school care. The court can include these expenses when setting your monthly child support payment.
Ways to Get More Child Support
Most of the methods listed above to reduce a child support obligation can also be used to obtain more support, though you will be making opposite arguments–that you need more money to support your child rather than the other parent needing less support.
- Get More Custody Time: If you already have your child half of the time, increasing your custody share can increase the other parent’s child support obligation.
- Show Your Income Decreased: If you lost your job, your employer reduced your hours, or you otherwise are making less money than you were at the time the judge ordered child support, file a motion immediately to request more support.
- Show Other Parent’s Income Increased: If the other parent’s income has increased since the court last calculated child support, you can request your support obligation be re-calculated using their new income, which should increase what you receive.
- Impute income: Convince the judge that the other parent is earning less than he or she could be earning. Both parents should be maximizing their earning potential if it is in the children’s best interest. If the other parent is choosing not to, the judge can “impute” the income he or she could be earning to increase the child support you receive.
- Show the Other Parent Pays for Less: Sometimes the other parent fails to use their income to pay for the child as they should. For example, they never buy the child new clothes or sufficient food. If you can demonstrate to the judge that you are paying for all of your child’s necessities, you can obtain additional support.
Temporary Spousal Support
When spouses split and before the divorce is final, temporary spousal support is available for the spouse who earns less. Like child support, judges typically start with a math formula to determine what temporary spousal support should be. Temporary support, however, is more flexible than child support and you can work with an attorney to argue that you should receive more, or pay less, spousal support while your divorce case is pending.
The basic formula for calculating monthly temporary spousal support is:
40% (higher earner’s net monthly income) – 50% (lower earner’s net monthly income)
For example, if the higher earner makes $10k per month, and the lower earner makes $6k, this would be (.4 x 10k) – (.5 x 6k) = 4000 – 3000 = $1000 owed per month from the higher earner to the lower earner. This is only a starting point for the judge, however. Perhaps the lower earner has the ability to go back to work but is choosing not to, or maybe the higher-earning spouse moved out of the family home and is facing a much higher cost of living now. Your attorney can argue multiple factors to help you obtain a favorable temporary spousal support order. The factors listed below under long-term support are relevant to the court’s temporary support decision.
Long-Term Spousal Support
Long-term or permanent spousal support is not based on a simple formula. If a marriage lasted less than ten years, spousal support will typically last for half the length of the marriage. So if you were married for seven years, support would end after three and a half years. For marriages longer than 10 years, spousal support can last for a lifetime.
When setting long-term spousal support, courts consider multiple factors, including:
- Maintaining the “Marital Standard of Living:” The court will look at the lifestyle you and your spouse had during marriage and determine what assistance the lower-earning spouse needs to maintain a similar standard of living. The court must consider what job skills the lower-earner has and his or her ability to attain new skills to maintain the lifestyle that you both shared during marriage.
- Sacrifices Made for the Higher Earner’s Career: The court considers what sacrifices the lower earner made during the marriage to help the higher earner gain employable skills. If one spouse put his or her career or education on hold to raise the kids or otherwise fulfill “duties” in the marriage, this weighs in favor of granting more support. For example, if the lower earner waited tables to pay rent while the now higher earner completed medical school, it would be fair for the lower earner to benefit from the former spouse’s degree. In contrast, if the higher earner already had a successful career before marriage, the lower-earning spouse is less entitled to a “cut” of the high earner’s continued success, particularly for a short-term marriage.
- Each Party’s Ability to Pay or Earn: The court must consider the standard of living both partners shared during marriage, but neither partner may be able to maintain the same lifestyle now that expenses are duplicated across two homes. The court reviews the higher earner’s income, assets, debts, ability to earn more, and standard of living to determine what support payment would be fair. The court also looks at the supported party’s assets, debts, and ability to work without interfering “unduly” with the needs of the supported party’s children.
- Each Party’s Age and Health: Perhaps the higher earner supported the other spouse throughout the marriage financially, but is now retired and living on a fixed income. Or maybe he or she is disabled now and can no longer work. Or maybe the supported spouse is disabled and unable to work to support himself or herself. The court takes into account each party’s current and historical work and health circumstances, including each spouse’s physical ability to earn money, when setting a fair support amount.
- Domestic Violence: The law presumes that a spouse who is convicted of a misdemeanor domestic violence offense against the other spouse within 5 years of either party filing for divorce is barred from receiving spousal support. If the offense is a felony, spousal support is prohibited. Domestic violence convictions can also have financial consequences regarding attorney fees in divorce cases and effects on entitlement to retirement and pension benefits.
Spousal support is meant to keep both spouses at a somewhat equal level financially while the supported spouse gains the ability to support himself or herself. For long-term marriages, however, it may be unreasonable or unfair to expect the supported spouse to ever gain financial independence.
For example, if a mother dedicated her entire life to raising the kids and working within the home, and the father seeks a divorce after he has built a successful career for 30 years, it may never be fair to cut the mother off completely from the benefits of the father’s career, which she enabled him to attain by managing the family’s other obligations. In contrast, if the father already had an established career before marriage and the mother has a degree that he or she could use to obtain lucrative employment, but he or she is choosing not to even after the kids move out, lifetime spousal support may be less justified.
Child and Spousal Support FAQ’s
1. Do I pay taxes on child support?
No. If you receive child support, you will not pay federal or state taxes on the support you receive. Child support is for the child’s benefit and is not considered income for the receiving parent by the IRS or California.
2. Is child support tax deductible?
No. At the state (California) and federal level, child support is not tax deductible. If you are paying child support, this will have no effect on your taxable income or the taxes you owe. You may be able to claim your children as dependents, however, which reduces your state and federal tax liability.
3. Which parent gets to claim the child as a dependent?
Typically, the parent who has a larger custody time share (custodial parent) will be entitled to claim the child as a dependent. The family court can, however, order the custodial parent to sign a form that entitles the other parent to claim the child as a dependent for tax purposes, if this will result in greater tax savings. Courts may consider this to be in the best interest of the child. When parents share custody time 50/50, they can alternate claiming the child as a dependent every year, or the court can order one parent to allow the other to claim the exemption to maximize tax savings.
4. Do I pay taxes on spousal support?
For divorces finalized after January 1, 2019, spousal support is not taxable income at the federal level. If you receive spousal support, you will not owe federal taxes on the support you receive. For California state taxes, however, you must report spousal support payments as income. Spousal support is still taxable income for California state tax purposes.
5. Is Spousal Support Tax Deductible?
For divorces finalized after January 1, 2019, spousal support is not tax deductible at the federal level. If you receive spousal support, you will not owe federal taxes on the support you receive. For California state taxes, however, you must report spousal support payments as income. Spousal support is taxable income for California state tax purposes.
6. Can I get child support if I never married my child’s other parent?
Yes. Your child is entitled to support whether or not you married the other parent and whether or not the other parent wants to be involved. You will need to locate the child’s other parent and serve him or her with paperwork to obtain child support. Your attorney can help you with this process through a private case, or you can open a child support services case, or both. You must establish the other parent is legally the child’s parent. You can do this by opening a “parentage” case if the other parent will not work with you to sign a voluntary declaration of parentage.
7. Can i stop paying child support if I givE up my parental rights?
No. The government has prioritized a child’s right to financial support over a parent’s right to relinquish parental responsibilities. It may seem unfair that a birth mother can decide to give up a child for adoption, but if she keeps the child, the father is generally on the hook for child support. Unless and until a court terminates parental rights (such as when a child is adopted), the law requires the parent to pay child support, whether or not the parent wants a relationship with the child. The case Kristine M. v. David P. explains the law well on this point.
8. Can the court order my former partner to split additional expenses with me?
Sometimes. The court is required to order parents to split necessary child care costs, such as daycare and aftercare, and uninsured medical expenses, such as health insurance deductibles and co-pays. The court has discretion to order parents to share expenses related to the child’s education, including extra-curricular activities, or travel expenses related to visitation. If one parent wants the child enrolled in an activity but the other parent objects, the court will usually require the parent who wants to sign the child up for the activity to pay for it. The court can decide, however, that a parent’s request is in the best interest of the child and order it. For example, if the less wealthy parent wants to enroll the child in sports but cannot afford it, the court may require the other parent to share the cost of the activity even if the parent objects.
9. How can i enforce a support order if my former partner is not paying?
To avoid this problem in the first place, be sure to request the family court orders wage garnishment or “income withholding” directly from your former spouse’s paycheck for child and spousal support payments. If the judge did not order income withholding originally, you can bring a motion later to request it. If you have a child support order, your best (and free) option may be to reach out to the local child support agency. They will enforce the order for you and can also assist with collecting spousal support owed. Contempt is the last-resort way to enforce a support order. Filing a private contempt action against your former spouse is a technical process that you will likely need an attorney to assist you with, but it can result in fines, license suspension, and even jail time if you prevail. The child support agency can also file contempt actions.
10. CAn I Change my support order after my divorce is final?
Yes. You will need to show that a significant change in circumstances justifies the request. For the individual paying support, this will typically be an involuntary and significant change in income, such as being laid off. For child support orders, a change in custody will usually result in a modification of support, as described above under “Child Support.” Other reasons the court may change a support order include hardships based on declining health, discovering that your former spouse concealed assets from you and the court, or remarriage.
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