How is Child Support Calculated?
In California, there is a mandatory statutory guideline formula for calculating support. (Family Code section 4050 et seq.) The following is a list of the primary factors that the court will use in determining child support. There are other factors that can influence child support and it is best to consult with an attorney regarding the specific circumstances of your case to get accurate information about what child support would be in your case.
Timeshare with the Children
The guideline formula takes into consideration the amount of time each parent spends with the child(ren). The time share component represents the approximate percentage of time that the high earner has or will have primary physical responsibility for the child compared to the other parent. (Family Code section 4055(b)(1)(D).) The difference between physical responsibility and physical custody is an important statutory distinction. The court will base timeshare on the amount of time that you are responsible for your child(ren) regardless of whether the child is actually with you. For instance, if the child(ren) is in school, but it is your responsibility to pick-up the child in the event of an emergency, the child is your responsibility and the school hours will be included in your timeshare.
Income of Each Party
Family Code section 4058 defines income available for support. Mandatory income that the court must consider in issuing an order for child support includes income from whatever source it is derived, including, but not limited to the following:
- Salaries and wages
- Bonuses and commissions
- Business and Self Employment income
- Dividends and interest.
- Pensions and annuities.
- Workers compensation benefits.
- Unemployment insurance benefits
- Disability insurance benefits
- Social security benefits
- Military allowances, including housing and food allowances
- Spousal support received from a person who is not a party to the child support proceeding
- Trust income
What if One Parent Doesn’t Have Income?
If one of the parent’s is unemployed or underemployed (i.e. not earning commensurate with his or her earning capacity), the court may impute income to that parent for purposes of calculating child support. (Family Code section 4058(b).) In order to impute income to a parent, the court must find that the parent has both the ability and opportunity to earn income.
Exceptions to the Application of the Guideline Formula
Courts are required to adhere to the guideline formula and may depart from it only in the special circumstances specified in the guideline. (Family Code § 4052) The presumption that the guideline formula amount, is the correct amount of child support may only be rebutted by admissible evidence showing that the application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Family Code section 4053 based on one of the factors set forth in Family Code section 4057.
- The parties stipulate to a different amount of support
- The sale of the family home has been deferred
- The payor of child support has extraordinarily high income such that an order under the formula would exceed the child’s reasonable needs
- A parent is not contributing to the child’s needs commensurate with that parent’s timeshare
- Application of the formula would be unjust because of special circumstances in the case such as
- When the parents have different timesharing arrangements for different children
- The parents have substantially equal timeshare of the children and one parent has a much higher or lower percentage of income used for housing than the other parent
- The children have special medical or other needs that would require greater support than the formula amount
In California, a parent has a right to receive child support for an adult disabled child. Family Code section 3910 provides: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.
Specific cases have defined what it means to be “incapacitated from earning a living” and “without sufficient means.” Incapacitated from earning a living means “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.” (See Marriage of Drake, (2015) 241 Cal.App.4th 934, 940 (citing Jones v. Jones (1986) 179 Cal.App.3d 1011, 1014–1015, 225 Cal.Rptr. 95.) The determination as to whether the child is without sufficient means is resolved by determining the likelihood that the child will become a public charge. (Drake, 241 Cal.App.4th at p. 940.)
How is Adult Child Support Calculated?
Adult child support is determined by the statutory guidelines set forth in Family Code section 4050 et. seq. The primary factors that influence the amount of child support that a parent will have to pay are the amount of time each parent spends with the child(ren) and the income of both parties. There are other factors, such as tax exemptions and deductions, retirement contributions, unearned income and earning capacity, that affect the child support amount. There’s more information in the post The Primary Factors in Child Support.
What if my Adult Disabled Child Doesn’t Live with either Parent?
The obligation to support an adult disabled child runs to the child, not to either parent. If the child has a conservator, legal guardian or other legal representative, the payments could be made to that person on behalf and as a fiduciary to the child. If the child lives with one of the parents, it is unclear whether the support can be paid directly to the parent or if it must be paid to the child. (See Drake, supra, 241 Cal.App.4th at 942, stating “When the adult child is disabled and lives with a parent who bears the primary financial responsibility for the child’s care, payment of adult child support to the parent makes sense.”) If the child does not live with either parent and does not have a guardian or other legal representative, the support could be paid into a trust account on behalf of the child.
Whether a child is severely disabled or has moderate learning disabilities such as dyslexia, dysgraphia or auditory processing issues, their ability to thrive depends on continuity and stability. Thus, parents who are going through a divorce with a special needs child should consider how best to support continuity and stability to foster the best possible outcome for their child with special needs.
Positive and Supportive Co-parenting
Positive and supportive co-parenting is critical to achieving the best outcome for children of divorce. This is especially true if your child has special needs. Children with disabilities suffer from a host of issues such as anxiety, lack of self-esteem, inability to focus, depression and bullying. Positive and supportive co-parenting means that both parents are involved in planning and participating in activities, educational support networks and medical/therapeutic treatments for the special needs child. Imagine a situation where both parents employ the same tools and techniques in both households so that the special needs child has consistency while living in two homes. This requires significant communication and trust between the parents.
If you are in a situation where co-parenting feels impossible, see if you can meet with a co-parenting counselor who specializes in high conflict divorce and special needs children. A qualified professional therapist should be able to assist you in achieving more parity between households.
When Co-parenting Fails, a Parenting Coordinator is Helpful
If parents agree to use a parenting coordinator, the parenting coordinator will help the parents navigate important day-to-day decisions that need to be made to best serve a child of divorced parents. This is particularly helpful when a child has special needs as there is often ongoing adjustments to educational and medical programs and structures. A parenting coordinator generally will help facilitate and agreement between the parents and, if no agreement is reached, the parenting coordinator can make recommendations or orders regarding the disputed issues. This process allows the parties to resolve smaller, ongoing issues in a more expeditious manner than going through the court process.
Determining a Custody Schedule that is Best for Your Special Needs Child
It is likely that a child with special needs will benefit from having consistency and continuity between households. Often, this means compromise between the parents regarding scheduling of custodial time. There are many ways to maximize the time that a child spends with each parent without creating disruption for the child’s academic, social and emotional health. Working with both a mental health professional and an attorney to help craft a schedule that would work best for a special needs child is critical to the long-term emotional, social and academic health of the child.