Family Law Terms and Definitions
Child support in California is based on a mandatory uniform guideline, which uses an algebraic formula to determine the amount of child support. It is primarily based on each parent's tax filing status (single, married or head of household) and average monthly income. Allowances are made for mandatory deductions such as federal and state taxes, and health insurance premiums and union dues paid. A deduction is also given for any child and/or spousal support that a parent pays for a child and/or spouse from another relationship.
There is no deduction given for either parent's specific living expenses (such as rent, car payment, credit card bills, etc.) Depending on the number of children and the amount of income the paying parent has, the percentage of take-home pay which goes for child support can range from approximately forty to fifty percent or more of that parent's after-tax income (net income). The other important factor that influences the amount of support that will be ordered is the amount of time each parent has physical responsibility for the child.
The child support guideline has been in effect since 1992, and is applied by all courts in the 58 counties of California. Judicial officers must order the guideline child support amount, even if the amount of support seems high, unless there are very special circumstances that allow the court to decrease or increase the guideline amount. By contrast, parents can agree to a child support figure that is below or above guideline (note: parents are not able to make their own agreement regarding child support if either parent receives welfare).
Child support is not tax-deductible to the parent paying it, and it is not taxable income to the parent receiving it. Spousal support has a different tax treatment (see below). However, in a divorce or separation case, sometimes a court orders, or the parents agree to, a "family support" order. This means that the child and spousal support order is combined and characterized as a family support order. The amount of the order is increased, and the entire amount is made tax deductible to the spouse paying it, and must be claimed as taxable income by the spouse receiving it. Family support is usually only ordered or agreed to in cases where at least one parent has an extraordinarily high income.
Under state and federal tax law, a parent is entitled to claim a child as a tax dependent if that child has been in the parent's home more than half of that tax year. In a child support context, this usually means that the parent who is the "custodial parent", or who has the child more than 50% of the time, has the right to claim the child as a tax dependent.
One of the factors in determining guideline child support is a parent's tax filing status, which includes the number of dependency exemptions that a parent is entitled to claim under state and federal tax law. The judicial officer's child support calculation will include an allocation of the dependency exemption(s) for the child(ren) involved in your case. This means the child support calculation and order made thereon is based, in part, on assigning one of the parents the applicable dependency exemption(s).
If a parent is entitled to claim a dependency exemption, that parent will also be eligible for the child tax credit and the earned income credit (as applicable, and if available at that parent's income level).
If you have a child support order, look at the calculation upon which it is based to see how the court allocated the dependency exemption(s). Usually, the dependency exemption(s) is allocated to the custodial parent. Sometimes, a support calculation will release the dependency exemption(s) to the non-custodial but higher net income parent because that has a better tax effect for both parents.
A court usually bases a child support order on each parent's actual income. Income from all sources (including overtime, bonuses, rental income, investment income, etc.) is considered. If a parent is unemployed or under-employed (below 40 hours per week), a court can base a child support order on a parent's earning capacity. The court then considers what a parent is capable of earning. The court must find that a parent has an opportunity and ability to work before it can "impute" an earning capacity to a parent and base a child support order on a parent's earning capacity. Either a custodial parent or a non-custodial parent can be imputed an earning capacity in calculating guideline child support.
Separate and apart from the guideline child support ordered, the court must order the parents to share equally any work-related childcare expenses (day care, babysitters) that either or both parents incur. Sometimes the cost of childcare, even when it is equally split with the other parent by court order, can be more than a guideline child support order.
A court may adjust the amount of guideline child support that would otherwise be ordered to take into account a child's educational or other special needs, or travel expenses that one parent incurs for visitation (for example, the non-custodial parent pays for the child to travel to and from another state for court-ordered visitation with the non-custodial parent).
A court may also adjust the amount of guideline child support that would otherwise be ordered if it finds circumstances evidencing hardship to a parent. Such circumstances are defined as extraordinary health expenses for which the parent is financially responsible, uninsured "catastrophic losses" and the minimum basic living expenses of a parent's natural or adopted child(ren) from other relationships for whom the parent has the obligation to support and who reside with the parent.
A court must issue a Wage and Earnings Assignment Order each time a court makes a support order. One of the parents must prepare and file with the court clerk the Wage and Earnings Assignment Order - the Judge does not prepare it for you. If the Department of Child Support Services (DCSS) is involved in your case, that office will prepare and file the Wage and Earnings Assignment Order.
One of the parents can then provide a filed copy of the Wage and Earnings Assignment Order to the paying parent's employer. The Order instructs the employer to withhold the amount of support ordered from the employer's wages, and forward the support payment to the custodial parent (or DCSS, as applicable).
The Family Law Facilitator’s Office/Self Help Center can help you obtain a Wage and Earnings Assignment Order if you do not have one yet.
DCSS operates in each County in California to establish, modify and enforce (collect) child support orders. DCSS will also establish a paternity (parentage) order and health insurance order when applicable. DCSS will become automatically involved in a child support case when a child receives welfare. In non-welfare cases, a custodial parent can request that DCSS open up a case to establish, modify and/or enforce (collect) a child support order. DCSS services are provided free of charge.
If you are served with a Summons and Complaint packet by DCSS, you have 30 days to file an Answer with the court clerk. If you don't, the court will make orders against you by default, including paternity, child support, child support arrears (if applicable) and health insurance. Filing an Answer to the lawsuit with the court clerk will mean that DCSS cannot get any orders against you by default, or without your having an opportunity to present your case to a judicial officer, including requesting a genetic test if you are not sure you are the parent of the child(ren).
DCSS in Stanislaus County is located at 251 E. Hackett Road, Modesto, CA 95352. Their mailing address is P.O. Box 4189, Modesto, CA 95352-4189. Their telephone number is (866) 901-3212.
In cases where a child has received or is receiving welfare, federal law allows the DCSS to obtain a court order for child support back to the date the child first started receiving welfare, subject to a three year retroactive limit before the date DCSS filed the Complaint (lawsuit) with the court. Effective 1/1/2000, new California law allows DCSS to go back only one year prior to filing the Complaint for a welfare reimbursement (child support) order.
Many parents incorrectly believe they are being sued by DCSS to pay back the amount of the welfare the other parent and/or the child received. This is wrong. The law requires that the court make an order for the amount of guideline child support that the "absent parent" (or non-custodial parent) should have been paying during the time that the child received welfare and the non-custodial parent was not living with (and contributing to the support of) the child. A child's receipt of welfare will trigger a child support lawsuit brought by DCSS against the non-custodial parent.
DCSS has special enforcement (collection) powers to collect child support. If any arrears (back support) are owed, DCSS can suspend a non-paying parent's drivers', professional or recreational license and/or suspend a passport. DCSS can also intercept (take) a non-paying parent's state and federal tax refunds.
If a child is not in the custody of either parent and the child receives welfare, DCSS will sue each parent in order to obtain a child support order. This happens when a child is in a group home, foster care, or living with a relative or other caretaker and receiving welfare. If the parents do not live together, they will be sued separately by DCSS and their child support obligation will be determined independent of the other parent's ability to pay child support as calculated under the guideline.
Child support cannot be modified (changed) for periods of time in the past (after an order has been made but before a "paying" or non-custodial parent makes a court request to reduce the amount of support, or before the "receiving" or custodial parent makes a court request to increase the amount of support). In other words, the court-ordered child support figure continues in effect until the court later modifies it and makes a new order. Usually, the earliest effective date for a modification is the date a parent files or serves a motion (a request for a court order) requesting a modification.
A parent who feels the need to have the child support order modified because of a change in circumstances since the last order was made needs to file a modification request in a timely manner. Under California law, child support is modifiable any time a parent can show the court that a material change in circumstances has occurred since the last order was made. If a parent believes there is such a change in circumstances, that parent needs to bring the new information to the court's attention right away (by filing a motion for modification) in order to obtain a new order that takes effect right away.
Interest at the legal rate (currently 10% per year) is owed on all unpaid child support (called back support, or "arrears"). The interest does not compound, meaning interest does not build up on the interest, but it accrues on the principal amount owed only (the child support amount ordered). Left unpaid, the amount of support arrears owed over time grows to sometimes astronomical numbers once the interest is added on. California law gives judicial officers no power to waive or adjust arrears that have accrued, or the interest that has accrued on those arrears.
A California support obligation ends, normally, when the child turns 18. If the child is 18 but still residing at home, still attending high school full-time and still not self-supporting, then the child support obligation ends when the child graduates high school or turns 19, whichever comes first. The court may extend the duration of child support if an adult child is disabled. Also, parents can agree to extend the duration of a child support order.
Any arrears continue to be owed until paid in full, regardless of the child's age. Arrears mean that there was a valid court order that support be paid, but the parent ordered to pay support did not pay some or all of the support while the obligation continued.
California law requires both parents to provide health insurance coverage for their child if such coverage is available at no cost or at reasonable cost. What is a "reasonable" cost is different from case to case.
Parents who do not have health insurance coverage for their child should look into the state program called HEALTHY FAMILIES. For more information and/or for an application, you can contact 1-800-880-5305 Monday through Friday, from 8 AM to 8 PM.
Both parents are also required to share a child's uninsured health care expenses (out-of-pocket or non-reimbursed expenses such as co-payments) equally if an order is in place that requires parents to share such expenses. This means that if a child has orthodontia (braces) and the uninsured cost will be $1000.00, each parent will be required to pay $500.00 as long as there is an order in place that requires the parents to share such an uninsured expense. Make sure you request this order from the court so it applies in your case.
Spouses can request that the court make a spousal support order as part of a divorce or separation case. Spousal support is a discretionary order, meaning the court has great freedom in determining what amount of support, if any, should be paid in a particular case, and for how long spousal support should be paid.
At the "temporary" stage of a case, meaning from the time the divorce or separation case is filed up until the time a final Judgment is entered, the court often uses the support guideline (see above discussion on child support for guideline factors) to determine what amount of spousal support should be paid. The court is not required to order the guideline amount. The guideline amount is based on each spouse's income, tax filing status, and certain allowed deductions such as health insurance and union dues.
At the "permanent" stage of a case, meaning after a final Judgment of separation or divorce has been entered; the court must consider certain statutory factors in deciding (1) what amount of spousal support to order, if any; and (2) the duration (how many months or years) of the order. The court considers factors such as the age and health of the spouses, the length of the marriage, and each spouse's job skills. See Family Code section 4320 for more information. Unless a court has reason not to do so, "permanent" spousal support will usually have duration of half the length of the marriage, measured from date of marriage through date of separation.
Unlike child support, spousal support is tax deductible to the spouse paying it (only those payments made after a court order is in place are tax deductible), and the spouse collecting it must claim the amount received in any given tax year as taxable income.
Spousal support terminates per court order, or naturally by the death of either spouse or the remarriage of the supported spouse. If you want the court to modify or terminate a court order for spousal support, you will need to file and serve a motion to request a modification or termination unless the order itself has a built-in modification amount and/or termination date.
Child Custody and Visitation
This action may be filed by married or unmarried parents to obtain custody and support orders without filing a dissolution of marriage/legal separation or nullity action, if the parents of the minor children are married, or without filing an action to establish a parental relationship, if the parents of the minor children are unmarried. This action is limited and can only be used in certain situations by a married or unmarried parent. This action does not deal with property or marital status, if the parents are married, or establish a parental relationship, if the parents are unmarried. To address these other issues, the married parents would need to file an action requesting dissolution of marriage/legal separation or nullity action. Unmarried parents need to file an action to establish the parental relationship.
Before parents can address the issues of custody and visitation of their minor children, there must be an underlying action. If the parents are married, either the mother or the father must first file an action requesting dissolution of marriage, legal separation, nullity or file the petition for custody and support of minor children's action. If the parents are unmarried, either the mother or the father must file an action to establish the parental relationship or file the petition for custody and support of minor children. Once an underlying action has been filed, the Court can address the issues of custody and visitation.
There are two types of custody, and the court needs to make orders concerning each type.
- Legal custody means which parent will have decision-making power over the child's health, education and welfare issues. The court can order that the parents have joint legal custody (meaning they have equal decision-making power), or the court can order that one parent have sole legal custody (the only right to make decisions about the child).
- Physical custody means where (with which parent) the child will primarily reside. A court can order that both parents have significant time with the child. This can be called "joint custody". The court could instead order that one parent will have physical custody, and the other parent will have visitation.
The State of California is a "mandatory child custody assessment" state, which means that if the parents cannot agree how they are going to share the children, they are required to go to an assessment conducted by a Child Custody Recommending Counselor (CCRC) to develop a plan with a neutral third party. In Stanislaus County the CCRCs are all skilled professionals with extensive clinical experience in the fields of psychology, marriage, family and child counseling or social work. These professionals are highly trained in conflict resolution.
At the time of your assessment hearing one of the CCRCs will be assigned to your case. They will take you, the other parent and any attorneys, if either party is represented by counsel, to a private conference room to develop a parenting plan. If the parents are unable to agree on a parenting plan, the CCRC will make a recommendation to the court with a plan.
The legal standard that the court uses to determine what type of custody orders to make in your case is the best interests of the child. This is a flexible standard that allows each family's and each child's needs to be considered. In determining what is in the best interests of the child, the court may consider the health, safety and welfare of the child, the nature and amount of the child's contact with both parents, the habitual or continual illegal use of controlled substances or alcohol by either parent, and/or any history of abuse by one parent against any related child, against the other parent and/or against any person with which the parent has been romantically involved. It is the public policy of the state of California that a child will have frequent and continuing contact with each parent, unless such contact is deemed not be in the child's best interests.
This action is filed by an unmarried mother or by an unmarried father who have minor children together. Through this action, the Court will determine paternity (or non-paternity if the father is found not to be the biological father of the minor children), and make custody and visitation as well as child support orders.
Once an action is filed by a Petitioner, the other party, Respondent, must be personally served with specific paperwork. If the Respondent fails to file the necessary responding paperwork within thirty (30) days of service, the Petitioner may request the entry of default. Once the default is entered, the Petitioner can complete the paternity proceeding without the participation of the Respondent.
If the Respondent files the necessary responding paperwork, the case will then proceed as either a contested matter or an uncontested matter. The action is considered contested if the parties are unable to agree on some or all issues and the Court must resolve the unresolved issues. The action is considered uncontested if the parties are able to cooperate and agree on all issues outside of Court and the matter can proceed to its conclusion by submitting the necessary signed paperwork for the Court's signature.
Dissolution of Marriage/Legal Separation/Annulment
There are three different ways to terminate a marriage. The most common is dissolution of marriage (often referred to as divorce). There are only two grounds used for obtaining dissolution, either "irreconcilable differences" or "incurable insanity." Most dissolution cases request an end to the marriage based on irreconcilable differences. California court is a "no-fault" state, which means the court does not need to find that one spouse is at fault for the breakdown of the marriage. The existence of irreconcilable differences provides the court with the grounds to make a divorce or separation Judgment.
A marriage may be dissolved on the grounds of incurable insanity " . . . only upon proof, including competent medical or psychiatric testimony, that the insane person was insane at the time the petition was filed, and remains incurably insane" (Family Code Section 2312).
To file for dissolution, either you or your spouse must meet California's residency requirements. Either you or your spouse must have lived in California for at least six (6) months prior to filing your case AND either you or your spouse must have lived in the county where you will be filing the dissolution case for at least three (3) months prior to filing your case. There can be situations where both parties reside in California for at least six (6) months but they lived in different counties for the last three (3) months. In this situation, a party can elect to file in either county. The court you file in is the court that handles your dissolution case unless both parties have moved from the county and have formally obtained a change in venue.
You do not have to meet any of the above residency requirements to request either a legal separation or a nullity of marriage. Most parties choose dissolution rather than a legal separation. Dissolution divides property and debts, makes orders regarding child custody, child support and spousal support, and terminates the marriage (restoring the parties to the status of unmarried persons).
Parties may choose to formally separate their lives but remain married for religious or other personal reasons (i.e., maintain medical insurance, qualify for derivative social security benefits). Both parties must agree to a request for legal separation. If one party files documentation requesting a legal separation and the other party files documentation requesting dissolution, the judge will grant the dissolution. If the marriage ends with the judge granting a Judgment for Legal Separation, either party may file a separate dissolution case to terminate the martial status to return both parties to the status of unmarried persons.
If you desire dissolution but neither you nor your spouse meets California's residency requirements, you may initiate a case requesting a legal separation. Once either party meets the residency requirements, you can amend the Petition form to request dissolution.
A nullity of marriage (sometimes referred to as an annulment) is rarely used. If the judge grants a nullity of marriage, it is as if the marriage never legally existed and restores the parties to the status of unmarried persons. Certain conditions must be met before the Court will find the marriage void (Family Code Sections 2200-2201) or voidable (Family Code Sections 2210) and grant a nullity of marriage.
Further, the conditions for nullity of marriage must have existed at the time of the marriage. There are time limits, which will prevent you from raising the issue of a voidable marriage. Time limits vary but are generally four years after the date of the marriage. Once these time limits have passed, you will need to end the marriage and resolve issues by requesting either a dissolution or legal separation. Even though the marriage is considered invalid, depending on the facts of the case, you may still be treated like a spouse for the purposes of property and debt division, custody and support as if the marriage had been valid.
The process of divorce begins when you file your initial papers. Before your dissolution is complete, all the issues must be resolved, either by default, agreement or through contested court proceedings. Each case is different. The process may take several months if the case is uncontested, or it could take years if there are a lot of disputes or complex issues.
When Is My Divorce/Legal Separation Final?
A person is able to remarry only after the Judgment has been entered terminating marital status. The earliest possible date upon which marital status can be terminated is 6 months and 1 day after the Respondent was served with the Petition and Summons for dissolution. However, in many cases, it takes much longer than this to bring the case to final Judgment.
It is important to know that you will not receive a Judgment of divorce automatically. You will not receive a divorce Judgment just by filing and serving a Summons and Petition, or just by filing and serving a Response. Even if the no response is filed your divorce is not final. You must take additional steps. In most cases, you and your spouse will either need to negotiate, prepare and file with the court a MARITAL SETTLEMENT AGREEMENT and some related forms, or if you cannot agree, set the case for trial, present your evidence, receive orders and then prepare and file the Judgment according to the court's orders. In some cases known as "true default cases", where Respondent never files a Response and the spouses do not have a Marital Settlement Agreement, it is possible for Petitioner to get a final Judgment of divorce without Respondent needing to be involved.
Do not assume that you are divorced until you have seen a file-stamped Judgment from the court that says you are divorced. Remember, this will not happen automatically—you and/or your spouse must continually work the case through to the Judgment stage. You are not free to remarry until you are divorced.
To be able to characterize your assets or debts as community or separate, it helps to know what your "date of separation" is. The date of separation is generally defined as that date you knew the marriage was irremediably broken. This means the date at which at least one spouse knew there was no hope for saving the marriage. For some people, this may be the date you moved out, or the date you filed for divorce.
Community property is generally defined as assets acquired through a spouse's time, labor and skills, from date of marriage through and including date of separation. Community property is usually everything that a married couple own together (title to certain assets does not have to be in both spouses' names in order to be considered community property), such as money that you now have which either spouse earned during the time they were living together as husband and wife, or anything either spouse bought with money earned during that time period. Community property can be things like a car, a house, a security deposit on an apartment, a 401(k) account, a pension, a bank account, home furnishings, etc.
Community debts are generally defined as the debts that a husband and wife owe together. In most cases, that includes anything you still owe on any debts either of you took on during the time you were living together as husband and wife.
California law requires that the spouses divide community property and debts equally. To equalize the division of assets and debts, one spouse may get more assets because they also got more debts. Spouses can agree to divide assets and debts unequally if they would like.
Separate property is generally defined as everything that a husband and wife own or owe (if it is a debt) separately. It includes assets acquired, or debts incurred, before date of marriage or after date of separation. It also includes any assets acquired by the spouse during the marriage by gift (to that spouse alone) or inheritance. California law requires that separate property assets or debts be confirmed to the spouse who acquired or incurred them.
California law requires spouses in a divorce or separation case to provide each other with forms to disclose assets and debts, and income and expenses. This requirement of disclosure applies to all cases even if there are no assets or debts to divide. The purpose of this step in the divorce or legal separation is to help each spouse develop information about the "marital estate" - what property and debt issues there are. This in turn helps prepare the case for final Judgment.
Domestic violence temporary restraining order forms, information sheets and fee waiver packets are available at the Family Law Clerk’s Office, Family Law Facilitator’s Office or Self Help Center or the Haven Women’s Center of Stanislaus County. There is no charge for these forms and there is no filing fee.
A restraining order is a Court order issued to prevent the recurrence of acts of abuse by a batterer. Under the Domestic Violence Prevention Act, abuse is defined as any of the following:
- Intentionally or recklessly causing or attempting to cause bodily injury.
- Sexual assault.
- Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
- Engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, disturbing the peace of the other party.
The act(s) of abuse/violence must be recent, within thirty days, and the batterer must be a spouse, ex-spouse, boyfriend/girlfriend, ex-boyfriend/ex-girlfriend, someone with whom the victim has or has had a dating relationship, an immediate family member (mother, father, in-laws, siblings, adult children), or a person with whom a party has a child/ren together. A victim that is a target of abuse but does not have the necessary relationship to the batterer may file a civil harassment restraining order, discussed below.
The restraining order can include the following: restraints on personal conduct by the batterer: orders for the batterer to stay-away from the victim's home/work and/or children's school; orders for the batterer to be removed from the residence; child custody and visitation and support orders and other miscellaneous orders.
A guardianship is a court case in which a person who is not the parent of a child asks for custody of the child. For example, if a grandparent wants to be able to care for and make decisions about his or her grandchild that a parent would normally make, the grandparent must first get a court order giving him/her guardianship. When you are appointed guardian of a minor you must serve as guardian until you are legally released by the court from your duties or the minor reaches age 18.
Guardianship of the person means taking care of the minor’s physical needs such as food, clothing and shelter. Guardianship of the estate means taking care of the minor’s assets, such as money, property or things of value. If the minor has assets you need to get help from a private attorney. The duties a guardian of the estate owes to the minor regarding how the minor’s money is to be handled are called fiduciary duties. These are the highest duties the law recognizes and require a professional level of knowledge and expertise.