DETERMINATION OF CALIFORNIA CHILD SUPPORT–IMPUTED INCOME
Created: Monday, 28 March 2016 15:42
As a Long Beach child support attorney, complex issues often arise in the determination of an appropriate child support award and monthly payment amount to be paid by a parent. An issue which frequently arises involves a parent who is willfully unemployed or underemployed by working part time or in a job below the skill level or employment experience of the parent for purposes of diminishing the amount of income available for child support. The court has wide discretion in determining a fair amount of child support in those cases and the services of a superior Long Beach child support attorney are required to ensure a proper result.
The basis of the court’s decision is set forth in California Family Code Section 4058 which states:
(a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:
(1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.
(2) Income from the proprietorship of a business such as gross receipts from the business reduced by expenditures required for the operation of the business.
(3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.
(b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.
(c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.”
Section 4058(b) provides the basis for the court to determine the amount of income which should be assessed to a parent who refuses to work, who is intentionally or otherwise working part time when full-time employment is available or working in a job or position below that which is available based upon past education and work experience. This is known as the “doctrine of imputed income.” When the payor parent has the ability and opportunity to earn more than he or she is earning, but is unwilling to do so, the court may apply an earning-capacity standard to deter that party’s shirking of family support obligations. Marriage of Regnery, 214 Cal.App.3d 1367 (1989). A three-pronged test must be met before the trial court may utilize a parent’s earning capacity rather than actual income in computing child support. Earning capacity is composed of (1) the party’s ability to work including such factors as age, occupation, education, health and experience; (2) the willingness to work and good-faith efforts to secure employment; and (3) an opportunity to work which means available employers in the job market. Marriage of Padilla, 38 Cal.App.4th 1212, 1217-18 (1995).
The court has the authority to order an unemployed or underemployed parent to submit to a Vocational Examination by a licensed and certified expert to determine the employability and potential earning capacity of such a person. This is traditionally ordered in response to a motion requesting such an order. If the examiner finds the parent has a greater earning capacity and the court accepts the finding, that parent will be deemed to earn that amount of money which will be used as the parent’s income for the determination of an appropriate child support award. This is rather sophisticated, and it is important to retain a Long Beach child support attorney to represent you in this situation.
Please contact William D. Evans, Long Beach divorce attorney, to schedule a consultant to address your child support issues.
CALIFORNIA CHILD SUPPORT BASICS
Created: Monday, 21 March 2016 19:41
As an experienced Long Beach family law attorney, I deal with child support issues on a daily basis. This post is the first in a series to provide you with the information needed to understand how the court will decide the issues in your Long Beach child support case. The issue of child support most frequently arises in a divorce action, but child support is also awardable in paternity actions under the Uniform Parentage Act and in public assistance reimbursement proceedings.
Whenever the support of a child is at issue, the court may order either or both parents to pay any amount necessary for the child’s support. Family Code §4001. Both parents are obligated to support their child who is unmarried and a full-time high school student who is not self-supporting until the child completes the 12th grade or attains age 19, whichever occurs first. Each parent is also obligated to support an adult child for whom support is authorized under Family Code §3910. Adult child support may be ordered for one who is incapacitated from earning a living and without sufficient means.
Family Code §§4050–4076 provide a statewide uniform guideline for making child support awards. The steps to be carried out by the court in each case in implementing the guideline are as follows:
- Calculating a formula amount that is rebuttably presumed to be the correct amount.
- Considering specified factors on which rebuttal of the presumption may be based and, when the presumption is rebutted, adjustment of the child support amount accordingly.
- Considering specified expenses related to child support and, when appropriate, increasing the child support amount in light of such expenses.
- Making appropriate adjustments, if any, to accommodate seasonal or fluctuating income of either parent.
The statewide guideline provides a formula for a tentative child support amount in each case. That amount depends on (1) the parents’ respective net monthly disposable income; (2) the number of children for whom support is being determined; and (3) the parents’ respective periods of primary physical responsibility for the children. Once these factors are known, the formula amount is determined by inputting the applicable data and the use of a computer software program, most often “DissoMaster” which is used throughout California by the court and divorce attorneys.
The statewide guideline directs the court to calculate net monthly disposable income by ascertaining annual gross income, applying specified deductions to arrive at net annual disposable income, and diving by 12 to obtain the monthly figure. Family Code §§4059-4060. If the monthly figure does not accurately reflect the actual or prospective earnings of a party at the time the support determination is made, the court may adjust the amount appropriately. Family Code §4060.
Under the statewide guideline, gross income includes income from any source except income derived from (1) child support payments actually received or (2) any public assistance program for which eligibility is based on need. Family Code §4058(a), (c).
A factor to be decided before the guideline formula amount may be calculated is the approximate respective periods of time in which each parent has primary physical responsibility for the children. Although there is no universal approach in determining the approximate respective periods of primary physical responsibility, it appears that judges often look at the distribution of overnights between the parents. When parents have different time-sharing arrangements for different children, the approximate percentage of time with each parent, for purposes of the formula, is the average of the approximate percentages of time the parent spends with the individual children.
After the net monthly disposable income has been calculated for each parent, the formula in Family Code §4055(a)-(b) is applied. Basically, the formula assigns a percentage of the parents’ net monthly disposable income that is to be allocated for the children’s support and then arrives at the child support amount required so that the particular percentage of each parent’s income is contributed. Each parent is deemed (1) to be providing the required amount of support directly during the periods when he or she has primary physical responsibility for the children and (2) to owe the required amount of support to the other parent for the remaining periods. The respective amounts owed by each parent to the other are then, in effect, offset against one another, resulting in a single child support amount payable by one parent to the other.
Future posts will explore the intricacies involved in the establishment of child support including the determination of income for a party who works on commission, owns a small business or receives periodic bonuses. It is important to select a highly qualified Long Beach child support attorney to properly negotiate and, if necessary, litigate a fair child support award in your family law proceedings.
Family law litigation is a very personal
Created: Thursday, 21 May 2015 18:29
Choosing the right attorney is key in making sure your case is handled correctly, and discretely. With William D. Evans on your side, you get an attorney who fights for what is right; and an advocate who treats you with the respect and compassion you deserve, and doesn’t just treat you like another number.
Just as important as the discretion and compassion with which your attorney handles your case is the amount of experience your attorney has in conducting your affairs with your best interests in mind. William D. Evans has more than 34 years of experience practicing law at the highest levels. He has a sterling academic and professional background. William D. Evans will guide you through the legal process quickly, effectively, and efficiently.
Look nowhere else for family law representation. The firm of William D. Evans will resolve your case in the most effective and efficient manner possible; aggressively protecting your family’s best interests, while handling your case with the discretion, sensitivity, and compassion it deserves.
World Class Representation
Created: Thursday, 21 May 2015 18:28
Look nowhere else for family law representation. The firm of William D. Evans will resolve your case in the most effective and efficient manner possible; aggressively protecting your family’s best interests, while handling your case with the discretion, sensitivity, and compassion it deserves