Can I reduce my child support add-ons?

Under Family Code 4061(b), either parent can ask the Court to order apportionment of add-on child care expenses to be different than the 50/50 split. 

Parents are often surprised that Family Court can order them to pay for 50% of their child’s extracurricular expenses, even if they disagree with the extracurricular. For example, the Court can order a parent to pay for tuition of a private highschool or music lessons, even if they disagree with the choice of the child attending that highschool.

When there is a significant disparity of income between parents, it may make sense to ask the Court to use the Family Code 4061(b) setting in Dissomaster to ensure that the childcare add-on expenses are allocated proportionally based on the parents income.

This dissomaster setting can significantly reduce the portion of add-ons that a parent is responsible for covering.

Family Code 4061 provides the following guidance:

(b) If requested by either parent, and the court determines it is appropriate to apportion expenses under Section 4062 other than one-half to each parent, the apportionment shall be as follows:

(1) The basic child support obligation shall first be computed using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057.

(2) Any additional child support required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d).

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.

Are Commissions and Bonuses Income for Child Support Calculations?

Yes. If you earn overtime, commissions, or bonuses at your job, those funds will be considered income for the purpose of calculating child support.

Family Code section 4058 provides that "annual gross income ... means income from whatever source derived" and subsection (1) identifies bonuses and the Court is allowed to make a Smith/Ostler Order for support based on Overtime, bonuses or commissions received, income or earnings over set amount, and other specific income sources.


Sometimes the Ostler/Smith amount is less than what you would have been ordered to pay if the court used your last years tax return to calculate your support payments, so it’s not always something you should fear.

Typically, the court will use a percentage-based model.  For example: Payor shall pay 10% of any gross income earned over $10,000 per month as additional child support.


Or, if you use the Dissomaster software, the Court could order the following:

Payor shall pay additional child and/or spousal support based on the attached Table for income earned over $125,000 per year.

The case law that permits these calculations is based on Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, Marriage of Mosley (2008) 165 Cal.App.4th 1375, and Marriage of Tong & Samson (2011) 197 Cal.App.4th 23.

See below for a typical Ostler Smith Bonus Table. If you have more questions about Ostler Smith Orders, you can contact me at Amanda@gordonfamilylaw.com for more information.

 

Have you made an overpayment of your Child Support?

 

Experienced family law attorneys in the San Francisco Bay Area can help you calculate your child support payments and reduce them if you have made an overpayment. 

In California, the family court court has discretion to consider overpayments as a credit toward later-arising arrearages. In making its determination of whether to apply a credit, the trial court must consider any agreement between the parties as to the payment's purpose or any communication between the parents on the subject, absent fraud. In re Marriage of Peet (1978) 84 Cal.App.3d 974, 149 Cal.Rptr. 108 (CA-4, Div 2). See also Starr v. Starr (2010) 189 Cal.App.4th 277, 116 Cal.Rptr.3d 813 (CA-2, Div 8),  In re Marriage of Smith and Maescher (1993) 21 Cal.App.4th 100, 26 Cal.Rptr.2d 133 (CA-4, Div 1).

If you are considering modifying child support and have more questions, you can contact me at Amanda@gordonfamilylaw.com for more information.

                                                                                 

Can I get an expedited hearing for child support?

It is unlikely that you will be able to shorten the time between filing your request and a hearing for child support. This is because California family courts rarely issue ex parte orders for child support. 

However, a party may file an application for an expedited support order under Family Code 3623. This is because In any child support action that has been filed and served, the court may issue an ex parte, expedited support order requiring either or both parents to pay support for their minor children during the pendency of the action.

If you are served with an order for expedited support, your response must state your objections to the proposed expedited support order. Fam C §3625(b). 

The response and income and expense declaration must be served on the applicant by any method by which a response to a notice of motion may be served. Fam C §3625(a). 

Next, the payor parent must have the clerk set the matter for hearing not less than 20 nor more than 30 days after the response is filed (Fam C §3626), and must give notice of the hearing to the other parties or their attorneys by first-class mail at least 15 days before the hearing (Fam C §3627). 

If this notice is not given, the expedited support order becomes effective at the end of the 30-day period, subject to the relief available to the responding party under CCP §473 or any other available relief in law or equity. Fam C §3628

In an order for expedited support, the support order will automatically becomes effective after 30 days unless the served party files a response.  If you are considering filing for a modification of child support, you can contact me at Amanda@gordonfamilylaw.com for more information.

Adult Child Support

Experienced Bay Area Family Law attorneys who have clients with adult children who have disabilities will inform you about the possibility of paying adult child support. 

If your child has an intellectual or physical disability such that it will be impossible for them to support themselves during adulthood, you may have a case for requesting adult child support.

Family Code § 3910 provides that both parents have an equal responsibility to support an adult child who is incapacitated from earning a living (physical or mental disability) and who has insufficient means to support himself or herself.

There is also a provision in the Family Code enables either parent to sue the other for contribution to support of an adult incapacitated child, which suit may be filed in the name of a parent or in the name of the child by a guardian ad litem. In re Marriage of Drake (1997) 53 Cal.App.4th 1139.

Incapacitated   

A child is incapacitated from earning a living if the child demonstrates “an inability to be self-supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child’s control.” Jones v. Jones, 179 Cal. App. 3d 1011, 1015 (1986).

Here are some examples of when an Adult child has been determined to meet the standard of  “incapacitated”: 

·      In Chun v. Chun, a father was ordered to support an “emotionally disabled” adult child with a twelve-year-old maturity level.  

·      In re Marriage of Drake dealt with a parent who was ordered to support an adult child with chronic paranoid schizophrenia.  

·      Farber v. Olken involved an adult child who was mentally ill. 

In order to demonstrate that an adult child has incapacity sufficient to meet the standard for adult child support, the parents must either stipulate to the fact OR the parties must have an independent medical exam conducted.

Without Sufficient Means
“[T]he question of ‘sufficient means’ should be resolved in terms of the likelihood a child will become a public charge.” In re Marriage of Drake, 53 Cal. App. 4th at 1154.

Courts have interpreted the phrase “without sufficient means” to be an inquiry into the issue of whether the adult child can or does require governmental benefits.

If you have an adult child support case, you should also consider setting up a special needs trust. This is because receipt of child support can reduce your child’s eligibility for IHSS, and SSDI.  You should speak with a special needs expert prior to receiving your court order for support.  

Adult child support cases can be complicated, so we recommend if you are considering pursuing an adult child support order you speak to a family lawyer experienced with cases of this nature.

If you are considering filing for a modification of child support or for support of an adult child, you can contact me at Amanda@gordonfamilylaw.com for more information.