Can I deduct my travel expenses from child support?

Yes, parents who travel to visit with their children can deduct their travel expenses from child support under Family Code 4062. Travel expenses for visitation are one of the discretionary items that may be added to statutory formula support as additional support for the children.

In order to ask for a deviation from guideline support, a court may deviate from the statewide child support guideline if it finds that application of the formula would be unjust or inappropriate due to special circumstances in the particular case. Fam C §4057(b)(5).

While Family Code 4062 does not define what is meant by the term "travel expense, the Court in Marriage of Fini (1994) 26 CA4th 1033, determined that because the expenses are typically incurred by the noncustodial payer of support, this expense should actually be considered a "negative add-on," which has the effect of reducing child support. 26 CA4th at 1039 n5. The court in Marriage of Gigliotti (1995) 33 CA4th 518, 529, disagreed with the court in Marriage of Fini, finding that the court does not authorize a "negative add-on," only "additions to the guideline formula amount because of expenses set out in [§]4062."  

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.

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.