In San Diego, California, the Court's use the mandatory state guidelines for child support in determining the amount of child support each month. Child support, in San Diego, is based upon the state wide guidelines. In part, the Court's are ordered to follow this guideline unless there is a motion for deviation which is not common. If you think you have facts which support a deviation from the guideline amount, it is important to consult with an experienced child support attorney. A parent's first and principal obligation is the support his or her minor children according to the parent's circumstances and station in life as embodied in the statutes. In addition, both parents are mutually responsible for the support of their children. The actual guideline calculation can be found in Family Code Section 4055 and is an algebraic formula. The most accurate way to calculate is on the Disso Master program which most family law attorneys have in their office. There is a very complicated program and requires training in its use. One of the purposes of the guideline amount is to seek to encourage fair and efficient settlements of conflicts between parents and to minimize the need for litigation. The guideline is intended to be presumptively correct in all cases and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
One issue which comes up are the treatment of hardship deductions. Under the law, the Court is permitted to consider "extreme financial hardships" however these are very limited. Examples of hardship deductions are as follows: extraordinary health expenses; uninsured catastrophic losses [one example would be if your house burned down during the recent fires and you did not have insurance or enough insurance]; expenses recognized in published appellate decisions or the minimum basis living expenses of natural or adoptive children residing with the parent who has the support obligation. In San Diego, these hardships are treated differently by each individual Judge and the granting of a hardship normally requires a motion, points and authorities in support of the motion, a declaration and documentation. If the hardship deduction is due to the basic living expenses of other children living with the parent, then the rule is that this deduction cannot exceed the support allocated to each child subject to the child support order. The Court must also make either a written or oral finding stating the reasons for the hardship deduction as well as some other factors. This is, as can be seen, a very complicated area of the law.
Child support is modifiable by law and normally, in the four courts in San Diego, California located in Chula Vista, El Cajon, Vista and San Diego, the change of circumstance for a motion for modification of an existing order of child support is plus or minus ten percent (10%) of the gross monthly income amounts used for the previous order. As such, if the amount used was $5,000 per month gross for either parent, then the motion for modification could only be brought if the income were increased more than $500 per month to $5,501 per month or decreased by more than $500 per month to $4,449 per month. There are exceptions to this change of circumstance argument and a San Diego child support attorney should be consulted whenever there is a modification since it would be inappropriate to file a motion only to have the payor's child amount increase or the payee's child support decrease when the goal of the client is opposite. Most attorneys have the Disso Master program which calculates the state guideline for child support and can give an accurate assessment of the amount using the program and guidelines. The law is that no child support order may be able to be modified retroactively prior to the filing date. This becomes extremely significant in the event of a change of circumstance to the payor of an existing child support order. For example, if there is a current order and the payor becomes involuntarily unemployed or terminated or physically disabled or has another legitimate factor under the law, a motion for modification must be filed immediately since a court hearing may take thirty or more days and the current order will remain in effect until then. As such, a payor may be liable for child support payments when the law would modify the support order downward, set at $0 or even order child support from the other parent however the Court will lack the ability to do so if the motion is not filed. This can lead to large amounts owing [arrear] which could be avoided. If you have a material change of circumstance and are the payor or payee in a current child support order, you need to contact an attorney immediately to determine the impact of this.
Contact Us Online or call us at 858-312-8500 in Southern California. Our experienced San Diego child support attorneys will be pleased to offer you a complimentary and confidential consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.