Child and Spousal Support

California law requires that parents share responsibility for the needs of their minor children, whether natural or adopted. The California Family Code also addresses the needs of a spouse who has depended on a marital relationship for financial support. Couples can approach child and spousal support via alternative paths:

1. They can pursue litigation, each retaining attorneys to contest the case and represent them in court. Ultimately, a judge decides the outcome.

2. They can devise their own settlement terms, each consulting an attorney and other experts as desired. The resulting settlement is filed as a Marital Settlement Agreement (MSA) for the court’s approval.

New Resolution helps couples mediate their own settlement terms. Our clients want to retain control of their divorce or separation. They want to avoid the enorm-
ous emotional and financial costs of litigation. And they want to protect their child-
ren from the often-traumatic experience of litigation. They’re also attracted to the speed, convenience, and privacy of mediation. At the same time, they know that the option of litigation remains if they’re unable to reach a mediated settlement.

Child Support

Child support is payable, subject to modification, until the child turns eighteen — unless the child is living at home while attending high school, in which case support continues until the child turns nineteen or graduates high school. Either parent can request child support from the other as part of various civil actions including a dissolution of marriage (divorce), legal separation, nullity of marriage, and dissolution of a domestic partnership.

When parties pursue child support through litigation, a judge must use a mathematical formula to calculate the monthly payment. The formula determines the so-called guideline support based on each parent’s income, amount of time spent with the children, and other factors such as obligations of support from a prior relationship. In a litigated case, a judge will seldom depart from this guideline support.

Couples who devise their own settlement, however, are free to set support that differs from the guideline amount in both amount and duration. The MSA must declare that (1) the parties know their rights under California law, (2) neither party has been subject to duress or coercion, (3) the parties believe the support amount is in the best interests of the children and will meet their needs, and (4) the child-
ren are neither on welfare nor is an application pending. These declarations not-
withstanding, a judge will always review a proposed MSA before signing a decree of dissolution or legal separation. This safeguard helps ensure that parents don’t agree to terms inadequate to meet the needs of their children.

Parties in mediation may be curious to know the guideline amount of child support. New Resolution maintains a computer program, certified by the California Judicial Council, that calculates this amount. The program applies the same mathematical formula used by every judge in the state of California.

Regardless of how child support is set, the amount is modifiable any time a parent can show the court that a material change in circumstances has occurred. More-
over, if the parties agree to set child support at an amount lower than the guideline amount, the recipient parent can request that the court increase support to the guideline amount without need to show a change in circumstances.

Spousal Support

Spousal support is of two types: temporary support in the interim before a case is settled, and permanent support after the settlement. Permanent spousal support ordinarily continues, subject to modification, for the period specified in the decree of dissolution or legal separation. However, permanent support automatically terminates when either one spouse dies or the recipient spouse remarries.

Spouses can contest spousal support through litigation, allowing a judge to decide the amount payable, to whom, and for what duration. Alternatively, you can specify your own support terms as part of a Marital Settlement Agreement. The MSA is then approved by the judge and incorporated into the decree of dissolution or separation.

Unlike child support, both the amount and the duration of spousal support are discretionary. Judges have no obligation to order spousal support. When they do order it, they usually apply different approaches in setting temporary and perman-
ent support. They typically calculate temporary support using a mathematical formula for the county in which the divorce or separation is filed. (This approach is similar to the way in which child support is calculated.)

Permanent spousal support is set quite differently. Rather than use a formula, judges must consider several qualitative factors as detailed in California Family Code §4320–25. These include the parties’ incomes, expenses, earning cap-
acities, standard of living during the marriage, and duration of the marriage. Judges can set the duration of support in one of three ways: indefinite, in which case the parties can petition the court for a modification in the award when their circumstances change; fixed, with termination scheduled after a specified number of months or years; or conditional, terminating on a specific date unless the recipient spouse successfully petitions the court to extend that date.

Couples who choose mediation over litigation decide for themselves the terms, if any, of spousal support in their Marital Settlement Agreement. Altogether different from the posturing and aggressive offers and counters that characterize a litigated contest, mediation allows you to consider the factors that are important to you when addressing spousal support.

To this end, the mediator can guide an open exchange with questions such as: Do you believe that one of you is now dependent on the marriage relationship for financial support? Do you want to create a plan to allow the more dependent spouse a greater degree of self-sufficiency? How will you share responsibility for helping the dependent spouse become self-sufficient? How long might be necessary before the dependent spouse becomes self-sufficient?