A. Child Support Let the Children Share in the Lifestyle of the Higher Earner: In Theory.
I’ll just tell it to you straight; the high earner is going to pay child support to the low earner in almost every case in which there is reasonable visitation. Child support is calculated by the computer using a relatively complex formula that uses a variety of input variables to arrive at a monthly support number. There are a whole lot of variables, but the two most important variables – by far – are percentage timeshare with the children and the difference between your incomes. There is additional weight if the lower earner’s income is lower – meaning you pay more if you have the same income difference between $50,000 per year and $0 per year and $100,000 per year and $50,000 per year.
Many many divorces start out relatively simple and low-conflict, but heat up into intense battles when people start to understand support. Most of our custody battles are fought, not over who actually cares for the children – with exceptions for parents who want the other parent to see the children very little – but over what the timeshare percentage will be for support purposes. We say we are fighting over the great glory of parenting and the sheer joy of watching our children sleep, at night, in our homes, while we watch TV, but really we are fighting over the “visitation” or “timeshare” percentage that will be slotting into the computer calculation.
The reason for this is that, for the most part, W2 wage earners’ salaries are pretty well set. Aside from annual cost of living raises or promotions, for the most part, wage earners can be relatively certain of their incomes for support purposes. That means, of the two most important support variables, only timeshare is not only changeable, but is originally set by (and modified by) a Judge who is already hearing your case and naturally assumes that the timeshare for each parent is at issue. It’s relatively easy to ask a judge to make custody and visitation orders in the process of the divorce – although it is “easy” to ask for custody orders, as I discuss in a later chapter, actually going through with a custody and visitation hearing can be financially devastating and emotionally demeaning to the point where it’s worth checking what is actually offered against what you are really trying to get.
Most parents who walk into my office are well aware that there is either some support coming to them or some liability to pay support. You would be surprised at the number of people, however, who believe that the man always pays child support, even where the woman is a higher earner or where the man is more responsible for the kids. Even judges fall prey to this basic sexism.
You will hear me harp on the idea that support was created at a time when we believed that women should stay home with kids, that they were weaker, that their virtue had been destroyed by the predatory man and, as a result, their capacity to earn or to find a man to take care of her and her children, was so diminished that she now had to receive maintenance and support to be able to survive. Child support basically had a gendered and sexist past. In the new world, women greatly outpace men in college and graduate degrees and are increasingly outearning them. This means that there are many more households where, as in the case of my recent terrible negotiation, the woman believes that the man’s job is so menial and minimal that he should take time off to care for the kids rather than her. This sounds a little familiar – from the stone ages of American sexism. Because the lower earner often does care for the children while the higher earner goes to work – not meaning the lower earner does not work, but when the high earner takes a day off work the family loses say $300. When the low earner takes a day off work, the family loses $100. It is a rational decision for the family to choose to have the lower earner take the day off work. Jobs that require people to be present to keep them pay more, typically, meaning that the higher earner must be present (or risk losing their job) while the lower earner often has a job that is already highly flexible and their salary already reflects that.
This is not to mean that I am not pro-child support. I absolutely am pro-child support. But it is important that we understand that it is no longer about maintenance or the idea that someone’s virtue has been stolen and no man will care for them and the children in the future (or that men don’t want large roles in parenting), but that the children have a right to share in the lifestyle of the higher earner. The only way to do this is via wealth transference from the higher earner to the lower earner. That said, I hope that books like this one will help encourage people of both genders to accept that the higher earner should pay child support to the lower earner. Often, it makes logical sense to do so, especially if a mother with three kids would have to pay $1,500 per month in additional childcare to have the children the majority of the time while she might pay her ex-husband $900 per month in child support to have the children during that time. There tends to be more money staying with the children rather than going outside the family unit when we allow support to flow to the lower earner. There is a very big, HOWEVER, however, which is that typically speaking, when both parents work at their maximum, more money stays inside each individual parent’s family unit and there is more overall money for the family. I talk more about this a little later in the chapter.
In this and the next chapters I will occasionally depart from my more chatty method of describing some of the particular issues in the family law and give you some case citations. In some instances, like the one just below I do a little cut and paste from a judicial decision so that you can get a flavor for the Court’s reasoning on some of these issues. That means you are also going to come across some footnotes – don’t be shocked, that’s how all legal writers do things. At the same time, you can safely ignore footnotes for the most part, unless it’s something you really want to know about in more detail. There is a fine balance writing a book like this – I want to make it entertaining but I also want to give you some red meat as the newscasters might say.[1]
What follows is an excerpt from Marriage of Cryer (John Cryer from Two and a Half Men!) in which the Court sets forth some of the statutory grounds for the payment of child support and, in particular, the importance of using the statewide uniform guideline.
“The amount of child support normally payable is calculated based on a complicated algebraic formula found at Family Code section 4055. Although we call this formula “the statewide uniform guideline” (§4055), “guideline” is really a misleading term. (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183.) The formula support amount is “presumptively correct” in all cases (see §§4057, subd. (a), 4053, subd. (k)), but “may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053 ․“ (§4055, subd. (b).).”[2]
Here, the Cryer court states that you should expect the Dissomaster – the computer program that runs this algebraic formula – to be presumptively correct. Only in rare instances will the Court deviate from this formulaic approach to child support. I’ve seen it done, but it’s truly a rarity. You have to show that there would be a true hardship on you if you have to pay the full amount. Everyone says that it’s a hardship because you simply don’t have an extra $784 per month to shell out to your ex to take care of the kids for you. But that’s not the standard for hardship – you might get a hardship when you are placed on furlough from work due to no fault of your own, when you are experiencing a major health crisis, when you have to report for active duty military, or when you have additional children in your home from a new marriage (maybe). The first thing you will want to do when you hear about the possibility of making an argument that it is unjust or inappropriate to pay that much in support is to figure out how you fit, but the likelihood of that is slim.
“Section 4053 sets forth a number of principles, foremost among them being the protection of the child’s best interest: “The guideline seeks to place the interests of children as the state’s top priority.” (§4053, subd. (e).) Among other principles, section 4053 also provides, “ (a) [a] parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life”; “(d) [e]ach parent should pay for the support of the children according to his or her ability”; and “(f) [c]hildren should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.”[3]
The main reason for the difficulty in showing injustice or inappropriateness in paying guideline child support is that the children’s interests are placed first and foremost. The Court will want to ensure that both parents have a place to live and both parents can feed the kids. If you are a somewhat standard situation in which Father makes $60,000 per year as a construction worker and Mother makes $30,000 per year as an office worker part-time and you have two kids, and you’re on a 25% timeshare, the possibility of paying $1,036 per month in child support is enough to give you nightmares. You already only take home $3,900 per month, so an extra $1,036 means that you are going to have to pay all your bills on less than $3,000 per month. Be grateful that the Mother is working though; if she wasn’t, your payment heads up to $1,365, and that’s with her claiming both children on her taxes. Plus you don’t get a tax benefit from paying child support.
“In light of these principles, departure from the standard child support formula may be appropriate when application of the formula “would be unjust or inappropriate due to special circumstances in the particular case” (§ 4057, subd. (b)(5)), so long as the variance is consistent with section 4053.”[4]
The “consistency with section 4053” issue is the big one for Marriage of Cryer, but also in most cases where the payor wants to find a reason why it is unjust or inappropriate for him to pay child support at the guideline amount.
Marriage of Cryer is a great case, not only because the numbers make you bug-eyed but also because it is such an outlier that it gives you reason to take a pause. Jon and Sarah were both actors. John’s career took off, while Sarah’s career went nowhere fast. Sarah and John agreed to a $10,000 per month child support order for one child when John was earning over $300,000 per month (this is WAY below guideline support by the way). John had a 35% timeshare. When Sarah fell upon hard times, the Court awarded John physical custody of their child and monitored Sarah’s visits. John asked (reasonably) to modify the child support order since he had the child 96% of the time. The Court denied the request under Section 4053 of the Family Code, stating that it was in the child’s best interests for Sarah to have a home for the child to visit once she was in a position to have the child over.
Injustice? Maybe. Since Jon was earning at least $327,000 per month, this was just 3% of his earnings. The Court felt like no injustice was being worked on him for having to pay. Guideline support should have dropped to $858 per month. But that would have made the Mother homeless and a whole bunch of other bad things would have begun to happen to her. In short, it is not easy or simple to get out of paying child support.
For child support, timeshare is the variable that is most likely to change, although there are a variety of other variables that make a reasonably large difference in the support calculation. This chapter walks through some of the input variables so that you can understand them. It also discusses the concept of “earning potential” – which is how much any party should be earning even if they choose not to earn income.
- First, a Brief Aside About How You Report Your Income to the Court
California has a set of mandatory forms that it uses for divorces. Good attorneys and paralegals not only know how to fill out the forms, but also which forms to fill out. All of these forms are available for free on the Judicial Council website (Google: “Judicial Council Forms” to find it or click the link). For Income purposes, the most important form is the Income and Expense Declaration. This form is four pages. It cuts to the heart of each party’s income and expenses.
I tell clients that this is a form they need to fill out, but that we can help them. It’s one of the first forms ever completed in a divorce. I tell them it’s a way they can save a few bucks by doing it themselves. They tend to like that. I give the following little speech every time I hand someone the form:
“Go home, put the form on the table and pour yourself a glass of wine. Drink that and then pour yourself a second glass of wine and start looking at the form….” It takes an hour or so to fill out if you are getting all of the information together as you go. It asks for two months’ paystubs and all of your income information. On the third page it asks for all of your monthly expenses. Always check the “estimated expenses” and round to the nearest $10. You don’t have to be a hero and pull out every gas bill or cell phone bill and list exact expenses – just give the estimates.
The other major way of exchanging information is through what is likely to be a local rule for each county. In Santa Barbara County it is called Local Rule 1419. In San Luis Obispo County Local Rules and Procedures 2.8:2. In Marin County Local Rule 6.13. These local rules all require you to provide two years’ tax returns, four months’ paystubs and 12 months’ bank statements for any account on which you are a signatory. It’s especially annoying to people when they have to produce the same exact half ream of paper produced by their spouse. These financial disclosures are very important to an analysis of each party’s account deposits – many times we find out about rental income, recurring gifts from a new boyfriend or girlfriend, or other types of income or potential income. If I have a party who owns their own business and claims to make less than minimum wage yet deposits $3,600 into their account each month, I try to show that they are understating their income. It’s not easy to prove, as I talk about below, but that’s one method of doing so.
2. The Basic Child Support Rules
As a basic rule, each of the variables below impacts your support in the following way (this is not unlike the Three Property Rules or the The Rule of Reasonability): anything that tends to reduce your tax liability or increase your refund tends to require that you pay more support (or receive less). There are some additional rules along with that basic rule – your new spouse is never obligated to support your children (but you don’t get to claim that you support theirs and reduce support either). There are some add-ons that are dollar for dollar add-ons – you pay one-half of all the unreimbursed medical expenses and one-half of all the childcare costs so your ex-spouse can work.
Child support continues until the child turns 18 and graduates from high school or turns 19. Questions that emerge about this are the following: what happens if we have an 18 year old who is a part-time high school student? What happens if the child is 17 but has already left for college? What happens if we have a disabled adult? None of these is particularly easy to answer. I will talk more about them below.
A note about the Child Support Calculation formula. No one really knows or understands the formula. We understand that there are additions to or subtractions from the calculations, but as far as anyone knows, including the judges, there is really no way of ensuring that the Guideline support that California touts as being the perfect way to set support, is actually the “Guideline.” The reality is that they are taking your money (or giving you money) based on a black box that none of us can see into. That shouldn’t salve your worries at all. It’s a system that keeps almost everyone out. We partially don’t reform it, I believe because most of us don’t understand it. But don’t just take my word for that, here are some of the judges:
“[W]e are left with a process for determining child support not understood by the legislators who enacted it [citation], judges not regularly handling family law cases who are assigned one and do not understand the formula and who may not have the computer resources or the computer know-how to compute it, and parties with child support orders imposed upon them by a formula which no one can explain to them. Even Lewis Carroll, when writing Alice in Wonderland, could not have contemplated such a bizarre situation. Historically, although California has been in the forefront of the development of family law, no other state uses California’s approach to child support. It is truly a sad state of affairs, when one considers that child support is a critically important financial issue affecting the lives of hundreds of thousands of parents and children in California.” (In re Marriage of Carter(1994) 26 Cal.App. 4th1024, 1029 fn. 5.
“These are proceedings where emotions and the level of conflict are already running high. A bad situation becomes more inflamed when an order for child support is calculated in a manner which the parties do not understand…Indeed, the entire statutory scheme appears to be an unprecedented effort by the Legislature to micromanage child support hearings and determinations in a manner which was neither contemplated nor required by federal law. The result is a process of determining child support which is complex and unduly costly, which requires the use of a computer and which is not understood by anyone, least of all the affected parties. There is no way that either the payor or the recipient of child support, even if represented by counsel, can comprehend how the court determined the amount ordered. As the trial court stated during the course of one of the seven separate hearings in this case: “I guess you’re pointing up the absurdity of the legislative efforts in this area, aren’t you? How do we get to these guys? Maybe somebody [who] authored this bill should explain it.”
What was once a short, simple, inexpensive process, easily understood and accepted by the participants, has become an increasingly costly and confusing nightmare. This process previously occupied little court time, but it is now so complicated, especially for the increasing number of parties representing themselves, that it now occupies considerable amounts of court time in an already overburdened court system.
We pride ourselves on a system of justice, especially in family law cases. In a just system, parents being ordered to pay or receive child support deserve to know how the amount of the support was arrived at and that the process used is one that is fair and reasonable to both the payor and the payee. This would not only make it more likely that the order will be complied with, but it would also eliminate the amount ordered for child support as a source of ongoing conflict between the parents, the fallout from which is clearly harmful to the child. It is indeed unfortunate that the Legislature, in its efforts to micromanage child support, lost sight of how important it is that the parents understand and accept the fairness of the calculation. Without this, the payor always believes the amount ordered is inappropriately high, and the payee believes it is too low, leaving the parents with unnecessary ongoing conflict indisputably detrimental to the child.
“The facts and circumstances of the parties in each family law case are different, which is why these cases are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity. It is for this reason that the author of the child support statute, later in the same legislative session in which it was adopted, ushered in another bill making clear “that it was not the intention of the Legislature to eliminate family law judges’ traditional discretionary authority to adjust child support orders in individual cases where fairness requires it.”
“This makes clear that the court, in child support cases, is not just supposed to punch numbers into a computer and award the parties the computer’s result without considering circumstances in a particular case which would make that order unjust or inequitable. (See County of Lake v. Antoni (1993) 18 Cal. App. 4th 1102[22 Cal. Rptr. 2d 804].) Otherwise, there would be no need for a judge; all you would need would be a computer.” In re Marriage of Fini (1994) 26 Cal.App4th 1033.
I truly apologize for the long digression, but I think it’s really relevant to understand how frustrated the judges and parties are about the calculation of “guideline” child support. In their effort to be uniform in their application, they lost sight of the fact that every story and every family is different, that we call upon judges to decide difficult matters and not just to sit there like automatons, punching numbers in to a computer. It’s so boring that not only do they not get it, they often do not even get it correct. Good lawyers find it so boring that they sometimes won’t even deal with child support orders, sending their clients to an already overworked Department of Child Support Services, who sitting in front of a Title IV Commissioner, simply reads information out and punches it into their computers. No one understands the support calculation whatsoever and no one cares to understand it. I have been continually surprised at how just a little bit of work in a child support Dissomaster (computer program) calculation, we can reduce support 30-40% (or increase it).
The strangest part about that is the fact that child support is the longest and most drawn out payment most people will make in their lives except for their 30 years mortgage. It often gets set quickly, without care or understanding, and although virtually everyone can seek to modify it at some point during the length of the child’s minority, most people do not. It’s a number that is at once too low and too high. Everyone comes to feel that they got screwed by the child support number and then, in resignation, learns to live with it.
In Volume II of this blog post, I am going to work through the categories in the Dissomaster child and spousal support computation computer program so that, if you don’t understand the algebraic formula to compute child support at least you understand the input variables in the Dissomaster program that everyone uses to calculate support. This gives you some power to manipulate the variables. I do not ever recommend to anyone that they attempt to evade their duty to support their children, but it’s very important that you see that this is a computer program. If it receives garbage in, it will give you garbage out. Most lawyers and 100% of people representing themselves, and most judges, have no blessed idea how the program works. They stick a few numbers in their and hit enter.
If you are representing yourself, you can buy the program for the iPad or your android device for about $40. It’s not the full and complete lawyers’ edition, but it will suffice. Sit with your ex’s paystubs and tax returns and play with the numbers. Take some time with it. I think you will find that you really benefit yourself when you do. If you deal with the most complex Dissomaster input variables, you will know more and do more than 99% of everyone that walks into the Courtroom, including the judges and the Family Law Specialists.
Generally speaking, remember this, if the input variable is one that gives you a tax advantage or more money, you will correspondingly pay more in support (unless its your new spouse income – which counter-intuitively results in a higher tax bracket for you and less in support). If it is something that is a dollar for dollar reduction in your income with no corresponding tax benefit, it will make less income available for support and reduce your payment. The more time you have with your kids, the less you pay.
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[1]As an aside, you may or may not know about the relationship between statutes and case law. The very brief course on that is the following: the legislature passes a series of laws (called the Family Code in this context) that sets forth a variety of legal rules. These rules can sometimes be vague – I think they do this because it’s hard to write specifics when you have two parties fighting over every word; they also may do it because vagueness gives the trial courts some leeway in how they interpret the rules. Case law comes about when trial court judges make rulings in cases that parties do not like. They then file an appeal to the next court up – the Appellate Court.
The Appellate Courts are the first line of appeals. They have to take any appeal that is given to them. They review the case file and decide whether the judge did things correctly or not. They usually give a reasoned response to their analysis of the trial court’s decision and reasoning. They will then write an opinion about what they think is correct or incorrect about the opinion and then set forth what the rules are. These opinions become binding on the trial courts below them and set forth understandings of rules. So, for example, a statute says each parent has to support the children according to their station in life. Then one parent quits their job as a stockbroker to work at Taco Bell because they don’t want to support their children. The trial court says, “that’s fine but we are going to impute income to you as though you are a stockbroker.” The Taco Bell worker appeals and the Appellate Court makes a decision as to whether a stockbroker can reasonably quit their high-paying job to work at Taco Bell without having to pay more support than their “station in life” allows for. The Appellate Court is not a place to hear new facts or new legal arguments. They are restricted to deciding whether the judge did it correctly based on the record in front of them. It may not surprise you to know that the Appellate Court does everything in its power to try to support the trial court’s findings and orders. There is a lot more to this but that’s the basic course. So I will sometimes refer to the Family Code (or “Fam. Code”) and sometimes give you a full case citation. If you want to look up a case that I cite, just go to your favorite search engine and type in the name of the case and you’ll usually find a couple of websites that have the case online for your reading pleasure. Many people don’t like reading cases; I really do. The court starts with the facts and the history of the case and then discusses the ruling and what the rule should be.
