Every child deserves and is entitled to receive financial support from his or her parents. With the help of a San Jose child support lawyer, support may be ordered when parents are obtaining a divorce, legal separation, or annulment. Child support is also available in a paternity action, when a child was born to parents who were not married at the time the child was born, or in a domestic violence case where one parent is seeking a restraining order from the Court.
Duration of Child Support
Child support may be ordered by the Court until the supported child turns 18, and is not a full-time high school student, turns 19, marries or registers in a domestic partnership, emancipates, or passes away, whichever occurs first. There are special cases when support may be ordered for a longer period of time, such as when the child has a disability and that child is not self-supporting. Parents may also agree to a support order that is longer in duration than the limit set by law.
Calculation of Child Support (“Guideline”)
Child support is calculated according to a statewide formula and local guidelines (“Guideline Support”), which considers several factors, including the following:
- The custodial timeshare between each parent and any of the minor children;
- The gross pre-tax earnings of each parent;
- The tax filing status of each parent;
- The number of children;
- Support for child(ren) from other relationships;
- Mandatory union dues;
- Mandatory retirement contributions; and
- Specific Deductions (Healthcare Expenses, Mortgage Interest Expense, Hardship Deduction, and Property Tax Expense)
- Pre-tax retirement contributions (non-mandatory)
Child Support by Agreement
Per Family Code 4065(a), parents may stipulate to a child support order with permission of the Court. Notably, the stipulated agreement can order child support to be above or below the Guideline Support. In order for the Court to approve a below guideline stipulated child support order, the parties must declare the following:
- The parents are fully informed of their rights with regard to child support. See Family Code §4065(a)(1);
- The parents agreed to the order without coercion or duress. See Family Code §4065(a)(2);
- The agreement is in the child(ren)’s best interests. See Family Code §4065(a)(3);
- The needs of the child(ren) will be adequately met. See Family Code §4065(a)(4); and
- The right to child support has not been assigned to the county pursuant to Welf. & Inst.C. §11477 and no public assistance application is pending. See Family Code §4065(a)(5).
Modification of Child Support
In order to modify a child support order, a change of circumstances is generally required. A change of circumstances may include: 1) a change in timeshare; 2) a change in either party’s income; or 3) a change in other variables that would warrant a modification of support.
However, if parties have entered into a below guideline stipulated agreement regarding child support, no change of circumstances need to be demonstrated in order to modify the child support order to the guideline level. See Family Code §4065(d).
Additionally, under no circumstances may a parent waive their right to child support. Child support is for the benefit of the children. Accordingly, child support is always modifiable.
Mandatory Add-Ons to Child Support
In addition to guideline child support, the Court is mandated to order additional child support in certain circumstances. These additional child support expenses include:
- Childcare Costs: related to employment or reasonably necessary education or training for employment. See Family Code §4062(a)(1).
- Uninsured Health Costs: reasonable uninsured health care costs for the children. See Family Code §4062(a)(2).
Discretionary Add-Ons to Child Support
In addition to guideline child support, the Court may order additional child support in the following circumstances:
- Educational or Other Special Needs: costs related to a child’s education or special needs. See Family Code §4062(b)(1).
- Visitation Travel Expenses: expenses related to travel for visitation. See Family Code §4062(b)(2).
While additional support is generally shared on a 50-50 allocation, deviation from this allocation may be ordered upon an affirmative request. If a different allocation is requested, the Court will calculate support first and then add-ons may be allocated based proportionately on the parties’ adjusted net disposable income. See §4061(b)(2).
Re: New-Mate Income: Generally, there is a statutory bar to looking at a new-mate’s income for support purposes. However, it might be possible in an extraordinary case where not doing so would result in extreme hardship to the child. Marriage of Wood, 37 CA4th at 1071.
New Mate Income
Upon re-marriage or entering into a new relationship, parents often question whether their new spouse or new-mate’s income will be considered for child support purposes. Under Family Code §4057.5, the Court generally does not include the new spouse or new mate’s income. It is only in cases where excluding this income would lead to extreme and severe hardship to a child that the Court may decide that the new income should be considered. If this preliminary determination is made, the Court then must also determine if considering the new-mate’s income would lead to a severe hardship to a child supported by the obligator or the new-mate.
If you would like to consult with a support lawyer about whether new-mate income should be considered in your support case, contact Aeschleman Law for a consultation.
How A San Jose Child Support Lawyer Can Help
Whether you or the other parent are seeking a child support order for the first time or seeking to modify a prior child support order, the San Jose child support attorneys at Aeschleman Law can assist you in calculating the guideline support that is appropriate in your case. We will negotiate with the other parent, and if negotiations fail, we will zealously advocate for you in Court to obtain an order that protects your child’s rights to financial support as well as your right to have support properly calculated. If you are the supporting parent and you believe that you are being asked to pay more than you can afford or than what your child requires, the family law attorneys at Aeschleman Law can analyze your financial circumstances to determine whether your support order should be lowered, and if it is appropriate, will advocate that you are not ordered to pay more than what is required by law.
Aeschleman Law can also assist you if you have an existing support order and the other parent is not complying with that order. We will advise you in how to enforce your support order and to collect any past due support payments.
Aeschleman Law is located in San Jose and serves Santa Clara, Alameda, and San Mateo Counties. Call us today for an initial consultation at (408) 724-8930. You may also contact us by filling out the form on the bottom of this site.