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 | Comments (0)

*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)