For most of the people who fall in love, nobody has divorce in mind, but marriage sometimes do not go the way you want, and they fall apart. Things can also fall apart during and after the Divorce process especially when children are involved. The court may not rule in your favor. As a matter of fact, it is very important having a strong and experienced legal backing who can fight for your parental rights during the Divorce process. Since there are so many problems that can come up during court, our lawyers at Los Angeles Divorce Lawyer give equal attention to every element of the divorce, including child support. Over the years we have grown familiar in family law issues and have experience in getting fair and the best possible results for our clients. Though there are common disputes in a divorce, we will take a closer look at child support in this article.
The California Law on Child Support During the Divorce
The first step to divorce is always the request for dissolution by one of the spouses. The petitioner will file a petition for the dissolution of their marriage with the court clerk in their representative county which is Los Angeles in this case. The petitioner will share the file with the other partner, who will be referred to as the respondent. During the process, they will exchange their financial documents where they state who owns what and who owes what.
The two will go through a discovery process, where they will agree to divide the property fairly, this is referred to as the elements of the divorce, which also includes child support. This part will last up to six months so that the judgment can be finalized; that is if the two individuals come to an agreement to their terms of the divorce, in this case, child custody and support. If this is the case, they will not face the court to resolve child custody and support issues. Otherwise, if they fail to come to an agreement, there is a big possibility of the case being determined by the court.
One of the crucial parts to child support is winning child custody. For starters, child support is recompensed by the non-custodial parent. The reason behind this is that the guardian who retains the most custody will already be supporting the child financially, by providing for the child’s basic needs and under the discovery process, they can file for child support. Though, both the parents can get equal custody of the child where then the child support will be calculated by the amount each parent earns.
The California law is very specific on this point, and it focuses on protecting and ensuring that the child is not stripped of reasonable care by their parents. The law is found under the California family code and article 2. Article 2 is referred to as the statewide uniform guideline (4050 -4076). In the family code 150, it stipulates support as an obligation that you owe on behalf of the child, spouse or a member of the family. Support, in this case, refers to a minor child or a child described under section 3901. Section 3900 states that both the parents are mutually responsible to the child support in a manner that suits the child’s circumstances.
During the discovery process, there are three methods the parents can determine the child support;
- A settlement through Informal negotiations
- A settlement using alternate dispute resolving procedures
- The dispute is resolved by the courts.
In this option, you and your partner have the room to have an informal negotiation on the issue of child support. The settlement can be with or without the assistance of your divorce lawyers. Both of the parents will be required to come up with a tailor-made solution of the child needs and requirements which will be met through child support. If the negotiation comes to an agreement, it will be defined as a settlement agreement which will be submitted to the family court, specifically during the divorce petition.
The aim of the court in this instance is to review the agreement and check if it observes all the legal requests. If the court does not find any unfair treatment to one of the spouses, it will support the agreement, which will become part of the divorce decree. If the parents fail to come to an agreement, they then can use alternative methods such as alternative dispute resolution (ADR).
Alternative Dispute Resolution
This alternative is less expensive and less time consuming for both you and your spouse. ADR is important especially when you and your spouse need to reach a child support agreement. But it depends on various factors, the important factor being the two parents have a willingness to work together in order to solve the dispute that is associated with child support. The resolution is found under mediation and collaborative law. Under this law, there are few types of common ADR, mediation, arbitration, neutral evaluation and conference settlements.
Under mediation, the couple will try to come to a resolution with the help of a mediator. The mediator cannot decide the dispute, rather they help the two spouses come to an agreement by helping them communicate. So, the mediator leaves the control to resolve disagreements to the two partners. Arbitration is quite different from mediation, the mediator in this phase is referred to as an arbitrator. The work of the arbitrator is to listen to both sides of the argument and choose the outcome of the arguments.
The features of arbitration can be considered as less formal than a court trial, in that the rules are occasionally relaxed. The child support decision by the arbitrator is not always final, since they can still resolve their dispute before a court. For neutral evaluation processes, each of the partners present their arguments to an evaluator. The evaluator will give their opinions of the parties’ evidence, considering the strengths and weaknesses and finally help them resolve the child support issue. The evaluator is a trained expert in family law and specializes in cases such as child support. If none of these methods work, the final resolution is to face the court, where they will determine the next steps on child support issues.
Court Case Hearing of Child Support Dispute
During the process, the judge will determine the required amount of child support to pay through the statewide guidelines. From the decision, they will issue the court support order. It might look like a simple argument but that is not the case. There are guidelines and requirements the judge must follow in order to come up with a decision. Some of the elements include income levels of both parents and the physical amount of time each of the parents has with the children. Both of the parents will have to fill out the income and expense declaration, where they will prove how much they earn in their income as well as detail their expenses.
The following are the criteria for the evaluation being be used under the child support enforcement act;
- The children's financial needs, which will include insurance, daycare, education and any other special needs.
- Both the parents’ income and the needs with the custody of the child.
- The capability of the parent paying the child support and their income.
- The standard of living of the child before the divorce.
The income and declaration information will help the judge to determine the net disposable income of you and your partner. The amount is calculated after subtracting income tax.
The judge will take a closer look into other forms of income which include the following but not limited to;
- Social security and pensions,
- Stocks and dividends,
- Interest on various properties and;
- Income from rental properties.
The judge will also consider the amount of time each parent spends with the children, this time is referred to as ‘time-share’. It is done by calculating the number of hours the parent spends with the children physically. The more time the parent spends with their children the less child support they will pay. These are some of the guidelines the state of California has put in place, but in the event of limited circumstances, the judge has the power to give a different order other then the one they are provided with. You should note that basic child support is exclusive of the cost of child care or any uninsured medical expenses.
Additionally, the judge's order on the child support will continue until the child turns eighteen (18) years old, graduated high school and is legally an adult. In rare occasions, if the child is disabled, the judge will give orders to both the guardians to support the child, if the child cannot support themselves. In case both of you have more than one child, the guideline states that the support will be divided among the children unless the judge orders otherwise. The guidelines work in a specific fashion, if one of the older children cannot receive child support, the money will be correctly balanced and dispersed by the guideline.
During the divorce and child support hearing, if evidence is brought forward by the attorney that a working parent is no longer working and they are not making any serious efforts to find a job, the court will give a ‘seek work’ order to the individual. If the individual fails to do so, the court can set a fixed income and give an earning capacity order. The court order will not assume that the parent is not working, but rather the parent will have to pay the consistent amount that they believe the parent is supposed to earn also known as ‘earning capacity’.
During the preceding, the judge will make their final ruling on the divorce and the amount of money required to be paid by each parent for child support.
Common Inquiries Regarding Child Support in California
Is there a limit to what one can pay in child support?
California is different from other states in the sense that it does not give a cap on the amount of support that is required. In most of the cases, the guideline calculation is considered as the appropriate legal calculation by the state. There are however rare occurrences the judge can differ with the state guidelines.
What if the calculated amount is clearly higher than what is needed to take care of the child?
Sometimes the result from the calculations may or may not produce such amounts. What is necessary is to take care of the child and this amount will vary from case to case. The guidelines that are provided by the law state that the child will be eligible for the same lifestyle proportionate to that of their parents. The basic objective is that any child support that improves the standards of living of the lower income spouse will always be upheld by the judge. In some instances, the amount being proposed by the calculations is excessive and it bears no association to either the standards of living of the parents or the amount that is required to take care of the child is not proportionate to the standards of the parents, then the judge will stray from the calculation guidelines.
Does the parent who pays for the child support pay all the expenses?
No, the payment is only for the basic living expenses. Other payments are not embraced in basic child support. They include non-covered medical expenses, school tuition, and extracurricular activities. The expenses will be divided between the two parents. For the custodian, they will also end up paying a required amount of child support.
What if my rights as a parent have been limited, do I still have to pay for child support?
If your rights as a parent were limited and you were ordered to pay for child support before your custody was limited, then you will continue to pay the amount that was required. Additionally, if the court is requested an order for a termination of the parents' rights and another individual is prepared to take care or adopt the child, the rights of the parent will be terminated. The court cannot terminate parental rights if they note that the child’s responsibility is left to one parent.
What if the parents receiving child support is no longer a resident of California and lives in another state?
If one of the parents lives in another state, the use of the Uniform Interstate Family Support act is used to enforce the child support order. The act stipulates each state in the dispute to cooperate with one another in order to form, implement or amend the child support orders. If the parent ordered to pay the child support lives in another state or country, they are ordered to register in the county of where one of the guardians lives. The local support agency will help with this type of situation.
What if The financial situations have changed after the child support case has been determined?
The child support issue is always subject to change from different situations that are a result of the financial circumstances of the non-custodial parent. Additionally, a modification of the child support order can be possible if the child is spending more or less time with the parent who currently is receiving child support. In the state of California, the parent receiving the child support can get an automatic review of the child support in order to keep it consistent with their income and the current support guidelines.
What happens if the individual receiving child support is not using the money towards paying the child’s expenses?
The California law does not specify what the support should be used for. This means there are no binding requirements that the parent receiving the support accounts on how the money is being used. The law assumes most living expenses that are sustained by the guardian benefits the child.
Does the judge consider taxes and loans when determining the amount of child support?
The judge will take a close look at the net income and exclude most of the mandatory deductions such as social security and income taxes. Whereas loan payments are not necessarily considered as mandatory. There are certain courts that will deliberate on the loan payments. On that basis, it helps determine the parents paying abilities. Note that this part of the case is under the courts' discretion.
Find a Los Angeles Divorce Lawyer Specializing in Child Support Near Me
Financial matters in Divorce cases are considered to be complex, especially when determining the financial responsibility of the parent. The California state law is also hard to understand sometimes, not forgetting the calculations being used to sum up the child support are more complex and confusing. Having the Los Angeles Divorce Lawyer who specializes in family law and child support will make the procedure more clear and include less stress. If you are in the Los Angeles area and you are contemplating a divorce feel free to talk to one of our lawyers at 310-695-5212 today.