or virtual Consultation
How is Guideline Child Support Established in San Diego and how can You Request That the Court Deviate From This Amount?
When determining what amount to order one parent to pay another for child support in a family law case in San Diego, the Court utilizes a computer formula that calculates what is referred to as a “guideline” amount. Numerous factors are considered when calculating guideline support, including but not limited to: each party’s tax deductible income, each party’s non-tax deductible income, the amount of parenting time spent with each party (calculated in a percentage), costs each party may pay into mandatory retirement funds, and costs either party may pay for medical insurance. In San Diego, the Court puts these numbers into a computer program called “Disso Master,” and a guideline child support figure is calculated. Other Courts may use different programs, but the guideline formula is the same. This ensures uniformity throughout Courts in California when it comes to guideline child support figures.How Do I Ask the Court to Order an Amount Different from Guideline?
Although the presumption is for the Court to simply order guideline support, a party can make a specific request for the Court to deviate from this. In San Diego, there’s a specific procedure required when requesting that the Court deviate from ordering guideline child support. The requesting party must first file a motion. Included in this motion, under the California Rules of Court 5.260 (b)(1), a person asking the Court to deviate from guideline child support must file a declaration indicating the amount being requested (either higher or lower than guideline), and the factual basis and legal argument that justifies the Court ordering an amount other than guideline. The declaration needs to involve legal argument and can often be extremely difficult to craft persuasively.How Does The Judge Decide Whether To Deviate From Guideline Support?
The presumption to order guideline support is a rebuttable one, as indicated in Family Law Code Section 4057, and the burden of rebutting the presumption rests on the requesting party. One way to rebut the presumption, is by providing proof that ordering guideline support would be unjust or inappropriate. There are numerous factors that could prove an order would be unjust or appropriate, such as: travel expenses to visit the child, uninsured losses of one party, an agreement to deviate from guideline, the paying parent supporting children from another marriage or relationship, extremely high income of the paying spouse (which would result in an amount above guideline), among many others. The Court will require that the requesting party prove that the guideline support amount is unjust or inappropriate by a preponderance of the evidence. If the Court finds that the party has met their burden of proof, they will make either oral or written findings, and issue an order deviating from guideline support, specifically stating their underlying facts, circumstances and reasons which support the decision. They will also need to specifically state the amount of the deviation, and the duration for which this order will be in place.
Asking the Court to deviate from guideline child support and filing a motion can be very technical and difficult. While a person may be entitled to a deviation if the Family Law Code, Local Rules and other applicable law are not followed, it’s likely the Court will deny your motion on procedural grounds alone. It’s important to hire an experienced attorney to assist you