Bay Area Divorce Lawyer Blog

In California divorce cases, courts typically calculate the amount of any spousal and child support awards based on not only the spouses' current earnings, but also their respective capacities to earn. As the Sixth District Court of Appeals explains in In re Marriage of Lim, the latter figure can be difficult to determine for a spouse working in a field that requires "excessive" hours on the job.

Carrasco (husband) and Lim (wife) were married in 2003 and separated eight years later. They had two children under the age of five at the time. Carrasco was a college professor with average monthly earnings of more than $9,000, while Lim worked as a partner in a law firm, earning more than $27,000 a month.

The parties resolved all of the issues related to their divorce, including the decision that Carrasco be given primary physical custody of the children, with one exception: the amount of temporary spousal support and child support Lim would pay to Carrasco per month.

Lim explained to the court that she had been on a leave of absence from her job for medical reasons and intended to return, working 80 percent of her previous hours in order to aid her children's transition following the divorce. As a result, she expected to earn about 80 percent of her previous salary, or just over $22,000. Based on the 80 percent earnings figure, the trial court ordered Lim to pay temporary spousal support of $2,705 and monthly child support of $1,568. Carrasco appealed the decision, arguing that the support payments should have been calculated based on Lim's full-time earnings capacity.

On appeal, the Sixth District ruled that the trial court did not abuse its discretion in using the 80 percent earnings figure to calculate the support orders. Noting that "it has long been the rule in this state" that courts may consider a spouse's earning capacity in determining support, the court further explained that "the court's determination of earning capacity must be consistent with the best interest of the children."

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it," Judge P.J . Moore recently wrote, introducing the matter of In re Marriage of Barth. As Moore went on to explain, California law allows a court to order a parent to pay retroactive child support going back to an original petition for divorce, even if it was filed in the wrong state.

Jeffrey Barth spent years trying to avoid the enforcement of an Ohio court's ruling granting wife Andrea Barth's petition for divorce, custody and child support, only to have a California court grant similar petitions and order a substantially larger child custody payment.

The couple were married in 1989 and had two children. Ms. Barth filed for divorce in October 2004 after her husband admitted to extramarital affairs, according to the court. Following protracted litigation on the matter, an Ohio court awarded the divorce, granted Ms. Barth custody of the children and ordered Mr. Barth to pay $1,600 per month in child support.

Mr. Barth ultimately had the order overturned after the Ohio Supreme Court agreed that the state courts did not have jurisdiction over the matter because Ms. Barth had not lived in Ohio long enough before filing suit. Prior to the divorce, she left the state with her kids to join Mr. Barth in California, but returned shortly thereafter upon learning of her husband's affair.

Litigation moved to California, where an Orange County court granted the divorce and ordered Mr. Barth to pay retroactive support of between $2,700 and $3,125 per month for 2004 to 2005, $7,645 per month for 2006 and between $1,000 and $3,050 per month for 2007.

In a recent opinion, California's Fourth District Court of Appeals explained that when a couple has children and later marries, the marriage nullifies a child support order entered prior to it, even if they later divorce.

Mark Wilson and Tamara Bodine were not married when their son was born in August 2001. Bodine obtained a child support order in July 2002 that required Wilson to pay $1,600 a month in support and granting sole legal and physical custody to Bodine. The couple had a second child in June 2003. Then they married in 2005 and separated two years later. A court entered a judgment dissolving the marriage in January 2009.

Wilson filed an action in state court on June 2010, seeking a modification of the 2002 child support order. According to Wilson, he had recently received a notice from the Department of Child Support Services indicating the he owed more than $150,000 in arrears for unpaid support, including payments covering the time during which the couple lived together and were married. Claiming that the couple was operating under 50 percent time-share with both children, Wilson asked that the support award be re-determined based on this arrangement. In response, Bodine argued that Wilson owed unpaid support for a 15-month period after the order was entered and before the couple married.

Following two hearings, a lower court issued a ruling in July 2011, ordering Wilson to pay $100 per month "on undetermined arrears." The court did not determine the specific amount of arrears owed.

On appeal, the Fourth District ruled that Wilson could not be required to pay support following the divorce because the couple's marriage nullified the previous support order. The court explained that the situation was analogous to one in which a couple divorces and later remarries after a court has entered a child support award. Pursuant to the state Supreme Court's 1968 decision in Davis v. Davis, the support award is extinguished by the second marriage in such a scenario.

The Court of Appeals for California's Fourth District recently explained in In re C.C. that a parent can be found to have abandoned his or her children for custody purposes, even if the parent continues to pay child support.

Charles and Misty were married in Pennsylvania in April 2001, less than a year after the birth of their first child, M.C. The couple later had another child, C.C., before divorcing in 2005. Misty was granted primary custody of the children, while Charles was ordered to pay $500 a month in support and awarded regular visitation.

Misty later married Eric and, in 2007, a Pennsylvania court granted her permission to move with the children to San Diego, where Eric was stationed in a military position. Eric, who had contributed financial support for the children since 2006, later filed a petition in California seeking to free the children from Charles's custody and control on the ground of abandonment. Eric also requested to adopt the children as a stepparent.

Charles fought the petition in a 2011 hearing, arguing that he had been unable to communicate with the children via weekly video conferencing ordered by the Pennsylvania court because he and Misty could not agree on the specific type of conferencing required. Specifically, he argued that his computer webcam was not compatible with the equipment Misty used and that she would not pay for him to get an upgrade. He also alleged that Misty did not tell him about the move until months after it happened, refused to make the children available by phone and did not provide a mailing address.

M.C., now 10 years old, testified at trial that he loved and wanted to be adopted by his "dad" Eric. M.C. also remembered Charles, but said he had not seen his father since 2005 or 2006. The trial court observed M.C. was "obviously very attached" to Eric, while C.C. referred to Eric as "daddy," and had no memory of Charles. The court also noted that Charles took no action to try to resolve his alleged inability to communicate with the children from 2007 to 2010, and made only token attempts to contact them during this time. As a result, the court granted Eric's petitions.

Talk to your children about what is happening
Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don't know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don't communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.
Be sensitive and thoughtful
Your children love both of their parents and need to hear about the situation in a way that honors their love for, and relationship with, each parent. If you must litigate, don't leave court filings and documents out where they might be seen. Don't talk to others about the issue in front on the children or where they might overhear. Kids are curious will often go to great lengths to hear what is going on and will sneak up on phone call and other conversations.
Act like a grown-ups and keep the conflict away from the kids
This is so important and has been repeated so often it has become 'common knowledge' and yet it still happens, parents will argue and fight in front of the children and even use them as spies or messengers. Put the children first and refuse to argue in front of them or subject them to your conflict in any way.
Ensure that Dad stays involved
Studies show that the more involved fathers are after separation and divorce, the better it is for the children. Work with your spouse or partner to develop a child-centered parenting plan that allows a continuing and meaningful relationship with both of you. Strong father-child relationships help children do better academically and become well-adjusted adults. Fathers need to be more than just the fun parent, they need to be helping and involved with school, homework, extracurricular activities and also be available emotionally and a co-partner in issues involving discipline.
Don't act out of anger
Some parents, due to anger and pain, try to keep the other parent out of the kids' lives. Divorcing spouses, angry and upset with the other often think the other parent is not good for the kids. But children's and parents needs during divorce are very different. Researchers working with children of divorce consistently highlight that kids want more time with the non-custodial parent.
Be a good parent
It is OK to recognize, be present with, and work through the emotional pain you may feel. But you still need to be there for the children, both physically and emotionally. Competent parenting is one of the most important factors in helping children adjust well to separation and divorce.
Take care of your own mental health
Seek help for feelings of anger, anxiety, and sadness. Even a few meetings with a counselor or therapist can help and your own mental health is tremendously important for the well-being of your chidren. Generally, if you are OK, they will be OK.
Keep the people that are important to your children in their lives
Help your children stay involved with your spouse's family and with friends. This will help your child feel they are not alone in the world, but have a deep and powerful support system - an important factor in becoming a psychologically healthy adult.
Be careful about your future love life
Give yourself a lot of time before you remarry or cohabit again. Especially for young children, forming new attachments to new partners where the relationship may then break up, just creates more loss. And this can lead to depression and a lack of trust generally. And older children need to be given time to learn to adjust to, respect and care for your new partner also.
Pay your child support
Even if you're angry or have little time with your children, this is important. Children of divorce face much more economic instability than those from intact families even with child support. They might not notice or recognize the support when they are young but they will as they get older.

Prior to the passage of Senate Bill AB 1050 recently approved by the California legislature, the children of parents in custody battles have rarely been able to testify in court. Court's typically obtain information from the child through third parties, commonly court appointed mediators who are often marriage and family therapists. Senate Bill AB 1050 which goes into effect January 1, 2012 amends California Family Code § 3042 and gives children a greater voice regarding their custodial preferences.

Existing law prior to AB 1050 required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.
AB 1050, however, states that "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation."

Pursuant to this law, there will be new procedures that require a court to allow a child to testify directly to the court regarding his or her preferences, if a child is 14 or older, unless the court determines this would not be in the child's best interests. The court must state on the record why such testimony would not be in the child's best interest. The law does not prevent courts from allowing children under 14 from testifying but there is no requirement that it do so.

Hopefully, this will be positive and will provide an opportunity for greater clarity and understanding and will be beneficial for children. However, as with most well intentioned laws, this could well be misused and create more conflict and parental alienation.

For those who go to court to determine how much child support should be paid by whom in a typical California divorce, there is a formula used to calculate the amount according to the state guidelines for child support.
The formula for the calculation of guideline child support is contained in California Family Code section 4055. That formula is expressed as follows: CS = K [HN - (H%)(TN)]. In this formula, the symbols set forth below (and used in the formula) make reference to the following definitions: CS = child support amount K = amount of both parents' income to be allocated for child support HN = high earner's net monthly disposable income H% = higher earner's approximate time of physical responsibility for the children TN = the parties' total monthly net income This formula will produce an amount of support per minor child. When more than one child is involved, the end result (CS) is then multiplied by a specific factor depending upon the number of children. For example, for two children the multiplier is 1.6; for three children, the multiplier is 2; for four children the multiplier is 2.3; for five children the multiplier is 2.5; for six children the multiplier is 2.625, and so on.
Roughly speaking, if the parents share relatively equal time and make roughly equal amounts of money, it is likely that neither will pay child support and that both will share costs such as unreimbursed medical and daycare. However, if either time or income vary, the formula will generate the guideline amount to be paid.