Family Law Facilitator
Office of the Family Law Facilitator
390 Fifth Street
Hollister, CA 95023
(831) 636-4079
FAX: (831) 636-4117
The Family Law Facilitator (FLF) is located across
the street from the Courthouse at 390 Fifth Street. Our mailing
address is: FLF, Superior Court of California, County of San
Benito 440 Fifth Street, Hollister, California 95023.
The FLF does not give legal advice, but offers
assistance and form packets to people who do not have attorneys
with family law issues, including child support, parentage,
dissolution, child custody, visitation and medical insurance
issues.
Our office is open 5 days a week from 8:00 a.m. to
4:00 p.m. The Family Law Facilitator is available on a drop-in
basis, first-come, first-serve, on most Tuesdays and Wednesdays
each week. .
The FLF offers first and second step workshops for
Dissolutions. Sign up is at the office. Appointments for more
complex and non-emergency issues are also available about 3 days
per month on Thursdays, but there is a long waiting list. The
best way to obtain immediate assistance, if you have a
child-related issue (either custody or support or both) is by
coming to drop-ins on Tuesdays or Wednesdays.
IF YOU ARE NOT FLUENT IN
ENGLISH YOU WILL NEED TO BRING AN INTERPRETER WITH YOU.
Below is some specific information on selected topics. If you
want more information, you can access the California Family Code
(the law) by going to www.leginfo.ca.gov, and then clicking on
"California Law" and then selecting "Family Code."
Child Support
The child support guideline. Child support in California
is based on a mandatory uniform guideline which uses an algebraic
formula to determine the amount of child support. It is primarily
based on each parent’s tax filing status (single, married
or head of household) and average monthly income. Allowances are
made for mandatory deductions such as federal and state taxes
and union dues, but there is no deduction for the parents’
(either the mother or the father) specific living expenses (such
as rent, car payment, credit card bills, etc.) Depending on the
number of children and the amount of income the paying parent
has, the percentage of take-home pay which goes for child support
can be anything from about forty percent to fifty percent or more
of that parent’s after-tax income.
The other important factor that influences the amount of support
that will be due is the amount of time each parent has physical
responsibility for the child (called timeshare of visitation).
If a parent not living with the child sees the child every other
weekend, including overnights, and some additional time such as
vacation, that timeshare is about 20%. That 20% timeshare is factored
in to the child support calculation, so that the child support
ordered represents the contribution the non-custodial parent makes
to the custodial parent for the 80% of time that the child is
with the custodial parent. In comparison, parents who have no
substantive relationship with their child pay more child support
because the child is with the custodial parent 100% of the time.
The child support guideline has been in effect since 1992, and
is applied by all courts in the 58 counties of California. Judicial
officers must order the guideline child support amount, even if
the amount of support seems high, unless there are very special
circumstances that allow a downward departure from the guideline
amount.
Tax aspects of child support. Child support is not
tax deductible to the parent paying it, and it is not taxable
income to the parent receiving it. Spousal support has a different
tax treatment (see below). However, in a divorce or separation
case, sometimes a court orders, or the parents agree to, a family
support order. This means that the child and spousal support order
is combined and characterized as a family support order. The amount
of the order is increased, and the entire amount is made tax deductible
to the parent/spouse paying it. Family support is usually only
ordered or agreed to in cases where at least one parent has an
extraordinarily high income.
Allocation of dependency exemptions for minor children. Under
state and federal tax law, a parent is entitled to claim a child
as a tax dependent if that child has been in the parent’s
home more than half of that tax year. In a family law context,
this usually means that the parent who is the "custodial
parent", or who has the child more than 50% of the time,
has the right to claim the child as a tax dependent.
One of the factors in determining guideline child support is a
parent’s tax filing status, which includes number of dependency
exemptions claimed by that parent on their tax return. If a parent
is able to claim a dependency exemption, that parent will also
be eligibility for the child tax credit and the earned income
credit (if available at that parent’s income level).
If you have a child support order, look at the calculation upon
which it is based to see how the court allocated the dependency
exemption(s). Usually, the dependency exemption(s) is allocated
to the custodial parent. Sometimes, a support calculation will
release the dependency exemption(s) to the noncustodial parent
because that has a better tax effect. This is called a "tactic
9" calculation.
Earning capacity orders. A court usually bases a child
support order on the parents’ actual income. Income from
all sources (including overtime, bonuses, rental income, investment
income, etc.) is considered. If a parent is unemployed or under-employed
(below 40 hours per week), a court can base a child support order
on a parent’s earning capacity. The court then considers
what a parent is capable of earning. The court must find that
a parent has an opportunity and ability to work before it can
"impute" an earning capacity to a parent. Either a custodial
parent or a non-custodial parent can be imputed an earning capacity
in calculating guideline child support.
Sometimes each parent is asked to pay child support. If
a child is not in the custody of either parent and the child receives
welfare, the Local Child Support Agency will sue each parent in
order to obtain a child support order. This happens when a child
is in group home, foster care, or living with a relative or other
caregiver and receiving welfare. If the parents do not live together,
they will be sued separately by the LCSA, and their child support
obligation will be determined independent of the other parent’s
ability to pay child support as calculated under the guideline.
Childcare expenses can be part of a child support order.
Separate and apart from the guideline child support ordered, parents
also have to share equally any work-related child care expenses
(day care, baby sitters) that either or both parents incur. Sometimes
the cost of childcare, even when it is equally split with the
other parent by court order, can be more than a guideline child
support order.
Wage and Earnings Assignment Orders. A court must issue
a Wage and Earnings Assignment Order each time a court makes a
support order. This Order, once issued by the court, is then provided
to the paying parent’s employer. The Order instructs the
employer to withhold the amount of support ordered from the employer’s
wages, and forward the support payment to the custodial parent
(or the Local Child Support Agency, as applicable). The FLF can
help you obtain a Wage and Earnings Assignment Order if you do
not have one yet.
Child support modifications. Child support cannot
be modified (changed) for periods of time in the past (after an
order has been made but before a "paying" or non-custodial
parent makes a court request to reduce the amount of support,
or before the "receiving" or custodial parent makes
a court request to increase the amount of support). In other words,
the court-ordered child support figure continues in effect until
the court later modifies it and makes a new order. The earliest
effective date for a modification is the date a parent files a
motion (a request for a court order) requesting a modification.
Here’s an example: Let’s say that the court ordered
father (the non-custodial parent in our example) to pay mother
$500.00 per month in child support in August 1998. Assume that
order was based, in part, on father earning $2500.00 per month.
Mother learns in September 1998, one month after the order is
made, that father is now earning $5000.00 per month, or double
his former salary. If mother waits until September 1999 to file
her motion requesting an increase in child support, the earliest
effective date of the new order is the date she files that motion.
She is not entitled to a modification back to (or retroactive
to) September 1998, when father’s salary doubled.
What if that father’s salary decreases? Let’s say the
court ordered father to pay mother $500.00 per month in child
support in August 1998. Assume again that the order was based,
in part, on father earning $2500.00 per month. Father loses his
job in October 1998, and begins receiving unemployment income
of $920.00 each month. If father waits until September, 1999 to
file his motion requesting that the court decrease his child support
order, the earliest effective date of the new court order is the
date he files that motion. Father is not entitled to a modification
back to (or retroactive to) the date he first became unemployed.
All unpaid amounts owed under the prior order ($500.00 per month)
(called back support or "arrears") continue to be owed
until paid in full. California law requires that interest of 10%
per year is owed on all arrears, and judicial officers are prevented
from waiving the interest that accrues on arrears.
What should parents do if they feel entitled to a child support
modification? Not wait!
They need to remember that:
Child support is modifiable any time a parent can show the court
that a material change in circumstances has occurred since the
last order was made; and
If a parent believes there is such a change in circumstances,
that parent needs to bring the new information to the court’s
attention right away (by filing a motion for modification) in
order to obtain a new order that takes effect right away.
Interest on child support. Interest at the legal rate
(currently 10 per cent per year) is owed on all unpaid child support
(called back support or "arrears"). The interest does
not compound, meaning interest does not build up on the interest,
but it accrues on the principal amount owed only (the child support
amount ordered). Left unpaid, the amount of support arrears owed
over time grows to sometimes astronomical numbers once the interest
is added on. California law gives judicial officers no power
to waive or adjust arrears that have accrued, or the interest
that has accrued on those arrears. Some states may have different
rules for their child support orders.
Duration of a child support order. A California support
obligation ends, normally, when the child turns 18. If the child
is 18 but still residing at home, still attending high school
full-time and still not self-supporting, then the child support
obligation ends when the child graduates high school or turns
19, whichever comes first.
Any arrears continue to be owed until paid in full, regardless
of the child’s age. Arrears means that there was a valid
court order that support be paid, but the parent ordered to pay
support did not pay some or all of the support while the obligation
continued. The custodial parent can collect arrears at any time,
years after the child grows up.
Health Insurance
California law requires both parents to provide health insurance
coverage for their child if such coverage is available at no cost
or at reasonable cost. What is a "reasonable" cost is
different from case to case.
For parents who do not have health insurance coverage for their
child, there is a relatively new state program called HEALTHY
FAMILIES. Under this program, regular health, visitation and dental
insurance is available to children up to 19 years old if one or
both parents are eligible for the program. If a parent is eligible,
the monthly premium costs between $4.00 and $27.00. Program eligibility
is determined based on a parent’s income.
For more information and/or for an application, you can contact
1-800-880-5305 Monday through Friday, from 8 AM to 8 PM.
Under California law, both parents are also required to share
a child’s uninsured health care expenses (out-of-pocket or
unreimbursed expenses such as co-payments) equally. This means
that if a child has orthodontia (braces) and the uninsured cost
will be $1000.00, each parent will be required to pay $500.00.
Make sure you request this order from the court so it applies
in your case.
Spousal support
Spouses can request that the court make a spousal support order
as part of a divorce or separation action that a spouse files
or responds to. Spousal support is a discretionary order, meaning
the court has great freedom in determining what amount of support,
if any should be paid in a particular case.
At the "temporary" stage of a case, meaning from the
time the case is filed up until the time a Judgment is entered,
the court often uses the support guideline to determine what amount
of spousal support should be paid. The court is not required to
order the guideline amount (compare: the court is usually required
to order the guideline amount of child support). The guideline
amount is based on each spouse’s income, tax filing status,
and certain allowed deductions such as health insurance and union
dues.
At the "permanent" stage of a case, meaning after a
Judgment of separation or divorce has been entered, the court
must consider certain statutory factors in deciding (1) what amount
of spousal support to order, if any; and (2) the duration (how
many months or years) of the order. The court considers factors
such as the age and health of the spouses, the length of the marriage,
and each spouse’s job skills. Unless a court has reason not
to do so, "permanent" spousal support will have a duration
of half the length of the marriage, measured from date of marriage
through date of separation.
Unlike child support, spousal support is tax deductible to the
spouse paying it, and the spouse collecting it must claim the
amount received in any given tax year as taxable income.
Spousal support terminates per court order, or usually the death
of either spouse or the remarriage of the supported spouse.
