The ability to take down a deadbeat dad seems to get easier with every appellate court decision in California. In Marriage of Alter (2009) 171 Cal.App.4th 718, the court decimated the type of dead beat dad that many of us previously believed were bullet proof.

The type of deadbeat I'm talking about is the father who sits at the pool all day working on his tan, while his children live with mom in a one bedroom apartment on the wrong side of the tracks. The type of guy who drives a fancy car, takes nice trips, and lives in a large house, while paying little to no child support, because the only money he receives is a recurring gift from his parents, which was once considered to be non income for the purpose of calculating child support.

In Alter, the man of the hour was named Jack. Jack was divorced to a woman named Cindie. Jack and Cindie had two children named Samantha and Alexandra. A couple of years after their divorce, Jack and Cindie found themselves back in court, dealing with a motion that Jack filed for modification of his child support obligation. During the hearing, Cindie argued that Jack's claim to have little to no income was bogus, since she knew that Jack's mother had given him a regular stipend for years.

To the trial judge, Jack admitted that his mother covered many of his expenses. She had been regularly giving him $3,000 per month for many years. For a time after the divorce, Jack lived with her, rent free. In 2005, she purchased a house and Jack moved into it. She then increased Jack's monthly stipend to $6,000, $3,000 of which Jack used to pay the rent his mother charged. Jack's mother also paid for Jack's daughter's schools, tutoring, and summer camp. Jack used his mother's credit card to buy clothes and other things for the girls. His mother paid for transportation and lodging for Jack to visit his daughters in Georgia several times a year. She gave him money from time to time when he needed it. She paid his attorney's fees in California and Georgia. And, although Jack had declined the offer, his mother had also volunteered to pay the difference between the court-ordered support and that which Jack was able to pay himself.

On appeal Jack tried to convince the court that gifts should never be considered income for the purpose of calculating child support, since the federal government does not consider gifts as income for income tax purposes. Unfortunately for Jack, the court was not persuaded with his argument. When ruling in favor of Cindie the court stated:

"We conclude that nothing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional concept of income as a recurrent monetary benefit... Jack has been receiving regular cash payments from his mother for over a decade. The periodic and regular nature of the payments means that the money is available to Jack for the support of his children."

Obviously this decision should be considered a big victory for a lot of custodial parents. However, a couple of cautionary notes needs to be made. First, the Alter court made it clear that not all gifts will be considered income for the purpose of calculating child support, especially if the gift is not recurring. Furthermore, the question of whether gifts should be considered income for purposes of the child support calculation is one that is left to the discretion of the trial court.

Finally, it is always possible that mommy and daddy will quit giving money to the deadbeat dad, in which case he can file a request for a downward modification of child support. Written by: Donald P. Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 8:32 PM | Permalink | Comments (0)

I'm about to tell you something that will make no sense: getting remarried after a divorce may result in a situation where you can lower your child support obligation after the court takes into consideration your new spouse's income. Before you call me crazy, please give me a chance to explain . . . .

When a Family court calculates child support in California it has broad discretion in detemining what constitutes a parties' "income." Trial courts have been upheld in imputing income to parties in a variety of situations. For example, trial courts have been upheld after imputing income to a party based on a reasonable return on his or her investments. However, there is one type of income that the California Family Code expressly prohibits judges from considering, and that is a parties' "new mate income," except in very limited circumstances.

Family Code Section 4057.5(a) provides:

The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner. (Emphasis added.)

In a recent published opinion, entitled, "In Re Marriage of Knowles," the Court of Appeal added to this rule, by holding that the trial court violated the Family Code when it considered half of the community income attributable to the subsequent spouse when it modified the father's child support obligation.

In this case, Elizabeth and Thomas Knowles divorced and in 1995 Thomas was ordered to pay a paltry $506 per month in support of their son - Carter. On January 6, 2005, Elizabeth filed a motion to increase Thomas' child support obligation. During the proceedings, Elizabeth asked the Court to consider as income, certain capital gains that Thomas and his new spouse (Sara) enjoyed as a result of investments they made after their marriage. The capital gains that Thomas and Sara enjoyed were more than 3.1 million. Much of these gains were invested in a brokerage account and a real estate development.

Although the brokerage account and the real estate development investments were community property of Thomas and Sara, the trial court considered the full amount in determining the reasonable return on those investments. In other words, the trial court did not reduce the value of the investments by 50 percent as a result of Sara's half ownership.

In reversing the trial court, the Court of Appeal recited the basic concept of community property law: "Income generated from community property is community income, and an equal, undivided interest in that income is attributable to each spouse." Thus, according the Court of Appeal, the trial court erred by including Sara's half of the community income when calculating Thomas' child support obligation.

In light of this decision, we can see how an obligor of child support may benefit when he invests his money with his new spouse. There are also situations where the inclusion of a new spouse's income in the calucation of child support reduces the obligation. This happens when the parties file jointly and the tax consequences reduces the child support obligor's net disposable income available for support.

However, I would not suggest you run off to get re-married based on this article. There are, after all, some things that money cannot buy, like peace of mind and a stable relationship.

Written by: Donald P. Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 5:49 PM | Permalink | Comments (0)

The mother of Akon's child has been trying (and failing) to serve him with legal papers over child support -- so now she's gonna call him out in the L.A. Times.

The lawyer, [Patrick Baghdaserians] for [name omitted] tells us they will be taking out an ad in Monday's L.A. Times to serve Akon publicly. If he doesn't respond, they will pursue a default judgment.

But we caught up with Akon in NY -- and it's all news to him. As he told our guy, "You got a hold of me and you ain't even trying. I'm a celebrity. My schedule is on the internet. You can go on my MySpace, it'll tell you where I'm at!"

Source: TMZ

Posted by The Law Offices of Donald P. Schweitzer at 10:54 AM | Permalink | Comments (0)

Where there is a change in circumstances of the child or of either parent, a modification of the amount of child support may be requested and will be granted where appropriate. Change in Circumstances Some changes in circumstances are sufficient to warrant a modification of custody or visitation but are not substantial enough to require a change in child support. A parent may move or a child may change schools, either of which might cause a change in the visitation schedule, without a change in child support. A child might become entitled to receive some type of benefit, such as a dependent child Social Security benefit from a stepparent. Many courts will not adjust child support merely because the child now has more resources. Other changes in circumstances do require a modification of child support. Change in Circumstances of Parents Where a parent loses a job because the only factory in town has shut down, the parent who lost the job may not be able to get another job at a comparable pay and a reduction in child support may be warranted. Where a parent gets a new job paying substantially more money, the change in circumstances of the parent warrants an increase in child support. If a parent becomes disabled and retires on a disability pension and Social Security disability benefits, the parent is entitled to request a modification. It should be noted that the disabled parent is not entitled to stop paying child support and assume that the child's social security benefit will be sufficient to meet the parent's child support obligation; modification by a court or tribunal is required. The fact that a parent remarries or subsequently has another child is usually not the type of change that requires modification of child support. If, however, the parent takes a job in another state, the end of sharing custody and the cost of visitation may require reconsideration of child support. Change in Circumstances of the Child A change of school or a change of after-school activities are not the type of circumstances that require modification of child support. On the other hand, when day care expenses or after school care is no longer needed, child support for such expenses should end, requiring a modification in child support. When a child has extraordinary medical expenses, those expenses may be added to basic child support, requiring modification. A child may inherit a large trust fund responsible for schooling or other expenses included in the child support obligation. The child support obligation should be adjusted to reflect the trust fund payment of this expense. When there is a change of custody, it is obvious that there must be a modification of child support.

Posted by The Law Offices of Donald P. Schweitzer at 2:56 PM | Permalink | Comments (0)

Akon made a baby with a woman who now wants him to make child support payments -- but she claims the only thing he does better than sing is hide from process servers.

[name omitted]'s lawyer, Patrick Baghdaserians, has been desperately trying to serve Akon but so far no luck.

Akon has already taken a paternity test -- and it was a match! The kid is 6 months old.

Akon's lawyer gave us the following statement:

"Akon has taken responsibility and has been extremely cooperative and proactive in handling this private matter. Paternity was only established just over 30 days ago. Since the case was filed outside of Georgia jurisdiction, where he is a legal resident, Akon is currently in the process of engaging counsel in California and will continue to handle this matter in a timely manner."

-Source: TMZ

Posted by The Law Offices of Donald P. Schweitzer at 10:35 AM | Permalink | Comments (0)

It was difficult to tell whose smiles were brighter - the newly adopted children and their parents, or their advocates who had worked with them to get to this special day - during the recent adoption hearings at Edelman Children's Courthouse in Monterrey Park. The emotion-filled hearings marked the culmination of Adjunct Professor Amy Pellman's Children and the Law course.

A judge of the Los Angeles Superior Court, Professor Pellman spent the semester training her students to help complete adoptions of children in the foster care system. This year, she worked closely with Public Counsel to accomplish a goal she has had for a long time: to pair Southwestern alumni with current students to execute these adoptions. The result of that collaboration was Adoption Day 2009, in which students and pro bono attorneys from Southwestern completed the adoption process for 12 children during hearings held on April 17. In all, this year's program will place 16 children in permanent homes.

"In this process, the students have an opportunity to experience a wide range of lawyering skills," Judge Pellman said. "First, they are in the role of an associate working with a partner on an adoption. They are learning how best to interact with a supervisor. In this same vein, they could be networking with that lawyer and helping their chances for obtaining a job after law school. They are learning interviewing skills and issue spotting. When they interview the families, they are responsible for assessing the adoption benefit and deciding whether it is correct for the child's level of needs."

Casey J. Marticorena '07, who works as a family law attorney in Pasadena, co-coordinated Adoption Day 2009 with Joanna Sanchez '07 by acting as a liaison between the pro bono attorneys, students and Public Counsel. The attorneys oversaw the progress of each adoption case in order to assure timely filing of all paperwork and that each adoptive family receives the appropriate benefits.

When she was a student, Marticorena participated in National Adoption Day. "Now, as an attorney, I am able to have more of a one-on-one relationship with the adoptive parents and the children," she said. "The students were responsible for preparing the Judicial Council Forms and interviewing the adoptive parents. They were very professional during the visit to the adoptive parents' homes."

Second-year day student Arpie Jivalagian worked with Marticorena. "This has been a great experience," Jivalagian said. "It opens your eyes to a different world, and it gives you a great feel for how the system works."

Public Counsel conducted a training session during one of Judge Pellman's classes where all participating attorneys and students were present. Students then worked individually or in pairs with alumni to finalize the adoptions. They drafted letters, either met face to face with the family or had conference calls, completed the actual forms for the adoption, advocated for the AAP rate (Adoption Assistance Program) for which the child was entitled, appeared at the hearing and took the parents' testimony in court. Judge Stephen Marpet finalized several of the adoptions that day, saying, "As a judge, this is the best thing you ever do, bar none."

Judge Pellman, a former senior trial attorney with Dependency Court Legal Services and legal director for the Alliance for Children's Rights, has had a great deal of experience with adoptions on both sides of the bench, and was the recipient of the American Bar Association's distinguished Child Advocacy Law Award. During her tenure with the Alliance, a "National Adoption Day" was established to highlight the need for adoptive parents for children in the foster care system. That program has since grown exponentially so that now every state participates.

Children who grow up in foster care often have an array of psychological, physical and educational challenges, and therefore the need for competent legal assistance. "Foster parents, many of whom are relatives, need legal support in order to help the children they adopt thrive and grow into productive adults," Judge Pellman said. "The system is so large that often many social workers have been assigned to the child's case, and this invariably leads to mistakes. The students (along with the pro bono attorneys) have a huge responsibility to ensure nothing is missed at this last stop to a permanent loving home."

Posted by The Law Offices of Donald P. Schweitzer at 4:33 PM | Permalink | Comments (0)

THE PENNILESS ATTORNEY AND HIS OBLIGATION TO PAY CHILD AND SPOUSAL SUPPORT

You know that paying child and spousal support is tough in California where even a high paid attorney complains about his support obligations. In the case of Marriage of Mosley, an attorney pleaded with the court to modify his monthly child and spousal support payments, claiming that he was financially destitute after making his payments.

After sorting out the interesting facts of this case, the Court of Appeal had to address two common issues: 1) how to apply bonus income to the support calculations; and 2) when to impute earning capacity to a party who insists on not working. I think you will find that the Court applied some common sense in rendering it's decision.

THE INITIAL SUPPORT ORDERS

Paul and Dawn Mosley were married for twenty years, lived in Orange County, and had five children. Both parties were licensed attorneys. Notably, Paul was a real estate lawyer during the recent real estate boom. Dawn, on the other hand, quit practicing law early on in the marriage to tend to their children. In 2002 the parties were divorced.

The parties' 2002 Judgment of Dissolution ordered Paul to pay Dawn $6,810 per month and 21 % of all of his bonus income. The child support order was based on the fact that Paul earned $447,150 for the year 2001, which equated a gross monthly income of $32,175. Paul's timeshare with the children was 32 percent (a factor considered by the guideline formula in California). No income was imputed to Dawn when support was calculated, since she was still unemployed and taking care of the minor children at the time the divorce was finalized.

Paul was also ordered to pay Dawn spousal support, in the amount of $4,100 per month, plus 15 percent of his bonus income. The spousal support order included a provision that the amount of support was insufficient to maintain the marital standard of living. The total amount of support (child and spousal combined), amounted to $10,910, plus 36 % of all of Paul's bonus income.

THE TIMES THEY ARE A CHANGING!

As Paul's tax returns revealed, the practice of a real estate attorney was quite lucrative between 2000 and 2003. This chart shows Paul's income (base salary and bonuses combined), for the listed years:

2000 - $529,652

2001 - $616,697

2002 - $689,215

2003 - $753,651

Unfortunately, the real estate market's bubble burst. Paul found himself out of a job when his law firm phased out their real estate practice. In February, 2005, Paul took up a new job as in house counsel with a home builder. Paul's new base salary was $205,000. However, his new compensation package provided that he could also earn a discretionary bonus of up to 150 percent of his base salary. In 2006 Paul filed an Order to Show Cause for modification of support, asserting that there was a material change of circumstances, warranting the court to modify the support orders.

Paul made several arguments in support of his request for modification of the support orders. He explained to the court that he was not capable of paying $10,910 monthly support as ordered, since his take home pay was often less than the amount he was ordered to pay. Paul declared that in the first two months of 2006, he paid Dawn more than the amount of his take home pay and borrowed all of his living expenses. In March, 2006 Paul received the remaining $85,000 of his 2005 bonus, most of which he used to reduce prior borrowings. He estimated that the remaining amount of his bonus would permit him to go two months longer before he would have to start borrowing again. Paul expected he would have to borrow 100 percent of his living expenses for the remaining six months of the year.

Paul also argued that the court should impute income to Dawn based on her earning capacity, since she had been given a Gavron warning (an advisement that she should make efforts to become self supporting), she was an attorney with impressive credentials, and based on her education and work history. Paul asserted that Dawn could earn at least $78,000 a year, and the court should impute those wages to her, in spite of the fact she was not working.

In opposition, Dawn argued that she could not afford a decrease in child or spousal support, since her monthly living expenses amounted to $10,000, and she was already living below the marital standard of living. Dawn also argued that the court should not impute wages to her, since she quit the practice of law several years ago, based on an agreement that she and Paul had entered into at the beginning of their marriage. Paul and Dawn had agreed that Dawn would stay home to take care of the kids, while Paul would go to work, and advance his career.

Finally, Dawn argued that the support orders should not be modified, since there was no showing that Paul's income had actually decreased to the point where a modification was warranted. Dawn pointed out that Paul's end of the year income for 2005, amounted to $448,392 (which included his base salary and bonus). And even though his 2005 income was less than it had been in several years, it was greater than his base income of $447,150, as reflected in the 2002 judgment. Therefore, Dawn argued, there was no change of circumstances and Paul still had the ability to pay the court ordered support.

The trial court denied Paul's request for modification after determining that there was no change of circumstances warranting a reduction of support. Furthermore, the court refused to impute income to Dawn, reasoning that there was no showing that a job was available to her, and it was not in the best interest of the children for Dawn to work.

THE COURT OF APPEAL WEIGHS IN

In a harshly worded decision, the Court of Appeal reversed and remanded the matter back to the trial court, ordering the trial court to recalculate Paul's support obligation, using Paul's base salary, exclusive of his bonus income.

As the Court explained, "It exceeded the bounds of reason to require Paul to pay nearly 100 percent of his take home pay in support payments, on the assumption, based on only a one-year history with the home builder, that he would continue to receive a six-figure bonus each subsequent year. It placed him in a position of having to borrow for his living expenses, and thus resulted in a miscarriage of justice." The court further reasoned that, "It would be an abuse of discretion for the court to leave Paul nearly penniless while he awaits the potential of a bonus each year, especially in light of the current plight of homebuilders."

The Court of Appeal also held that the new order must include a method for paying support based on his bonus income, citing In Re Marriage of Ostler and Smith (1990) 223 Cal.App.3rd 33, as follow: "No future bonus is guaranteed. It would therefore not be appropriate to base a support order on Husband's bonus income and then require him to file motions to modify at such times as the bonus is reduced. It would be more fair to all parties to base the support order on Husband's income from salary . . . , and to allocate a portion of the future bonus income to the children and to Wife by way of a percentage interest so that future litigation will not be necessary as the bonus income changes."

The Court of Appeal also directed the trial court to reconsider it's ruling with respect to Paul's request that income be imputed to Dawn based on her earning capacity, stating, "On remand the trial court shall consider the change in circumstances, Dawn's obligation to provide support for her children, and her ability to do so."

While discussing the imputation of income issue, the Court restated the law that a court may not impute earning capacity to a parent unless doing so is in the best interest of the children, citing In Re Marriage of Cheriton (2001) 92 Cal.App.4th 269. The Court then held that the same principals applies to when a Court calculates spousal support, stating, "Even in setting spousal support, the court cannot disregard the impact of the children if the supported person returns to work," citing Family Code, Section 4320.

But the Court of Appeal held that the trial court failed to consider all of the evidence before it in evaluating the best interest of the children. The Court recalled Paul's testimony that if Dawn contributed to the support of the children, he would not need to spend as much time at work trying to maximize his bonus and would be able to spend more time with the children himself. In this regard, the Court stated, "We cannot disagree with his assertion that it is in the best interests of the children to receive nurturing from both parents. Indeed, sometimes the best interests of the children are promoted when parents reduce their work hours so as to spend more time with their children."

Addressing Dawn's complaint that she did not have enough money, the Court stated, "Also, Dawn complains that the amount Paul currently pays in child and spousal support is insufficient for the children and herself to live according to the marital standard of living. It follows then, that any additional income Dawn could provide would only increase the level of support available to the children, and thus promote their best interests."

Finally, the Court of Appeal restated the law that it is both parent's obligation to support their children, by citing Marriage of LaBass & Munsee.

CONCLUSION

It is important to note that where bonus income is at issue, the trial court has the discretion, under appropriate circumstances, to include the bonus income to the payor's gross monthly income by simply entering his or her year to date income into the child support calculator, which will then calculate the average monthly income. However, based on the Marriage of Mosley, we know that it will be an abuse of discretion for the trial court to include the bonus income if there is not a sufficient track record to predict receipt of the bonus income for future years.

It is also going to be a problem for the trial court on appeal if it can be shown that the payor would be financially destitute after making the support payment. And finally, based on this case, we know that when calculating spousal support, the court has to consider the best interests of the children before imputing wages to the supported party.

Written by: Donald P. Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 2:31 PM | Permalink | Comments (0)

Determining a parent's obligation to support a child in California is pretty cut and dry in most cases. However, as the parties in a recent published case learned, determining a parent's obligation to pay child support for an adult child will usually depend on the particular facts of the case. Continue reading or click onto the above presentation for a detailed analysis of this case.

In Marriage of Edwards, a family court determined that a father's obligation to pay support to his ex-wife continued, even though the child was an adult and was attending a state university. The parties had previously stipulated that the father would continue to pay child support after the child became an adult and agreed to split the child's college tuition. Under California law, the father's obligation to pay child support would have ended when their son attained the age of 18 and graduated high school. But for reasons not mentioned within the decision, he agreed to pay child support until their son reached the age of 25.

Several years after entering into the agreement, the father filed an Order to Show Cause for modification of the child support order, arguing that it was unjust and inappropriate for him to continue to have to pay support, since he had a significant decrease in income and the child was not living with the mother. Furthermore, the father argued that the child was not longer in the care and custody of the mother, since he lived at the university and had received a sizable financial aid packet from the state.

Mother, on the other hand, argued that their adult son was still within her primary care, given that the son's "stuff" was still at her house, he used the house to receive mail, he listed the house as his address to the university, and he came home for extended visits during the school's breaks. Consequently, the mother argued that it was not unjust or inappropriate for the court to order the father to continue to pay guideline child support.

The family court agreed with the mother and refused to depart from the guideline formula for calculating child support. The lower court found that there was no change of circumstances, warranting a departure from the guideline formula. The court proceeded to calculate child support based on the guideline formula and lowered the child support payment, based on father's decreased income. However, the court granted the mother 100 percent timeshare of the adult child, which is a significant factor in California, as the amount of time a parent has responsibility for a child impacts the amount of child support to be paid. Obviously, the lower court had bought into mother's argument that she had primary care and responsibility of the adult child.

Fortunately for the father, the Court of Appeal was not persuaded by mom's argument, and reversed the lower court's decision to order guideline child support. The Court of Appeal agreed held that ordering guideline child support under the circumstances would be unjust and inappropriate. Furthermore, based on the facts presented, the court specifically found that the adult child was not in the mother's primary care and responsibility.

In rendering its' decision, the Court distinguished the case of In Re Marriage of Drake (1997) 53 Cal.App.4th 1139 where the guideline formula was applicable to child support for a mentally incapacitated adult child whose mother took full responsibility for his situation and care.

An obvious lesson from this case is that the court will look to the parent who has responsibility of the child in determining the child's custodial parent. In a case where the child is an adult it is possible that neither parent may qualify.

This case is also an eye opener to those who enter into agreements for the continued support of an adult child. We can see how a parent may get off of the hook by filing a modification of child support, when it becomes apparent that the other parent is no longer responsible for the child. In other words, these types of stipulations and orders may be more modifiable then what we previously imagined. Thus, parties should be careful not to bargain away significant rights on behalf of continued support of an adult child.

On the other hand, the fact that the adult child attends college does not mean that an order will not be enforceable. In a case where the adult child continues to live with a parent, while attending a local college, the parent is still primarily responsible for the child, and the court would probably enforce the type of stipulation entered into by Mr. and Ms. Edwards.

Written by Donald P. Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 3:59 PM | Permalink

*IF AUDIO STOPS PLEASE CLICK ON THE TIMELINE TO CORRECT THE ISSUE* On occasion California courts have to struggle with the issue of what constitutes income for the purpose of calculating child support. In a recent California decision entitled "Marriage of Rothrock," the court of appeal had to determine whether or not an uncharacterized personal injury settlement award that was paid into an annuity, constituted income for the purpose of calculating child support. In rendering its' decision, the court of appeal relied on the common law definition of income as well as a federal statute in determining that the monthly annuity did not constitute income. The court's use of the common law definition was somewhat new, in comparison to recent cases where the same issue presented itself. For a more detailed analysis of the court's decision, click onto the above presentation.

Posted by The Law Offices of Donald P. Schweitzer at 4:11 PM | Permalink | Comments (0)

In today’s world, parents often begin planning for a child’s education far in advance.  Most Los Angeles County residents are not satisfied with their neighborhood public school.  Instead, they search for designer private schools in order to provide their children with the best possible educational foundation money can buy.  If their children are lucky enough to be accepted into these prestigious programs, parents are then faced with the staggering tuition costs associated with these institutions. 
This focus on education does not dissipate simply because a marriage ends.  The need for a quality education remains a priority.  Unfortunately, the costs of divorce and the death of the community income may cause some parents to question the practicality of exorbitant tuition costs. 
In families where one party generates the majority of the income, this analysis becomes even more complicated.  If you are the high earner, does California law require you to cover some of (or all of) the costs of private school tuition?  If you are the low earner or non-earner, does California law allow you to rely on the other party’s higher income to support the costs of private school tuition?
And even in situations where each party’s income is relatively similar, does California law impose some kind of equal division of such costs?
Private education as a discretionary “add-on”
The California Family Code sets forth a mandatory formula for child support that theoretically takes into account each parent’s “circumstances and station in life” and “ability to pay” child support.  This formula, however, does not include “special” and unique child-care expenses a particular family may encounter.  In order to provide for these additional expenses, the Family Code has created two types of child support “add-ons”--one entitled “mandatory” and one entitled “discretionary.”
Educational costs for a child are deemed discretionary rather than mandatory.  This means that a particular judge has the discretion, or the freedom of choice, to determine whether or not she considers the proposed cost to be appropriate as an additional expense to a parent. This requires a party’s counsel to make a convincing argument that the private school tuition should, or should not, be paid.

A legal argument for or against such an add-on should address several issues, including, but not limited to, the following

1.                  Specific Needs of the Child: Does the child have a special physical or mental disability that is most appropriately addressed at a private institution?  If a child has documented and undisputed special needs, a court is very likely to order that they be met.
2.                  Length of Attendance: How long has the child been attending the school? A court is more likely to order that private school tuition continue if the child has been there for several years and is at a critical stage of development in which removal from the school would be against his or her best interests.
3.                  Alternatives: Where would the child attend school if he or she did not attend the private institution?  What is the reputation of the local public school?  Is the neighborhood in which the public school is located safe?
4.                  Ability to Pay: What is the financial situation of the parties?  Can each parent, or one high-earning parent, pay the tuition and still continue to pay for mandated child support and other expenses he or she may have?  This factor must always be taken into consideration, regardless of how compelling any other factors may seem.  This is because, as a practical matter, many families cannot afford to maintain the lifestyle they lived during the marriage.  As a result, nonessential expenses, like private education, must be eliminated.

Allocation of private educational costs

            If your counsel is successful in persuading the court to order an add-on for private educational expenses, then the court must also determine how that add-on will be allocated between the parents.  If no specific allocation is requested in one’s moving papers to the court, the tuition will likely be divided “one-half to each parent.”  If you believe an alternative allocation is merited, documentation should be presented to corroborate such a belief. 

            One common alternative to the equal division of such add-on expenses is an allocation corresponding to each party’s respective income.  In this calculation, the court looks to the net disposable incomes of each party, after they are adjusted by counsel to include any spousal support and mandated child support that has already been ordered paid.  The court then examines these adjusted incomes, and determines what portion of the add-on would be appropriate for the higher earner to provide.  One must exercise caution in advocating this alternative allocation to the court, since a judge may order the standard equal allocation of the add-on if the adjusted net disposable incomes of the parties fail to show a true disparity between the two incomes.  

Written By Kayla Horacek 

 

Posted by The Law Offices of Donald P. Schweitzer at 4:01 PM | Permalink | Comments (0)