Based upon specific mathematical formulas and other considerations, including those specifically set forth in Family Code § 4055, the Court will typically utilize a Judicial Council approved computer program to calculate a “guideline” child support amount, that will then be made an Order of the Court. Child support is based upon the Net Spendable Income (NSI) of a supporting parent, which is calculated by the support programs based upon a parties' Guideline Net Income (which first takes into consideration the income tax consequences involved in paying spousal support, if spousal support has been previously ordered). Two of the more common approved computer programs are called Dissomaster and Xspouse.
Because these programs require the manual input of various pieces information, there is significant room for error or “alternate” calculations, depending on what information gets entered into the program and in what specific way. More importantly, some attorneys will attempt to improperly manipulate the support calculation to gain an unfair advantage for their client. Unfortunately, an error in the calculation of child support may prove to be both costly and devastating in that the Court will seldom credit a parent for an overpayment of child support based upon an incorrect support calculation. Because of the complexity of the formulas and the programs utilized in calculating child support, it is important that you hire an attorney who not only understands how these programs work, but who also understands how the programs can be manipulated to artificially increase or decrease the proposed support amount.
The parent who is paying child support cannot take a tax deduction for the payment of Court ordered child support amounts, nor can a child support order be discharged in bankruptcy. Conversely, the parent who receives the child support payment does not have to declare the support monies on their income taxes as that money is not considered “income” in that it technically belongs to the supported minor child(ren). There are, however, sophisticated strategies that can be employed to structure child support in such a way that the party paying the support can end up with tax advantages anyway. These are often referred to as “tactics”.
If a parent has past-due child support, what happens depends on whether the Department of Child Support Services (DCSS) is involved, or not. If DCSS is not involved, the parent to whom the child support monies are owed (technically the money is owed to the child for support, but the custodial parent is the person who actually receives the monies and who has “standing” to petition the Court to take action regarding unpaid child support obligations) may do a number of things, including filing a Request for Order and / or an Affidavit for Contempt (FL-410 form). A contempt proceeding, as the FL-410 form indicates, is “criminal in nature. If the court finds you in contempt, the possible penalties include [a] jail sentence, community service, and fine.” A Request for Order may seek liquidation of assets to pay the child support arrears and other remedies.
The Department of Child Support Services must, by law, alert the California Franchise Tax Board whenever a parent who has been ordered to pay child support becomes more than $100.00 past due in their support payments or the payments are more than 30 days late. The Franchise Tax Board can then take action to garnish wages and seize property in an attempt to satisfy the past due child support obligation. The California Franchise Tax Board has expansive power to collect monies, including issuing a wage assignment order to have up to 50% of a person’s net disposable income garnished directly from their paychecks, seizing monies from a bank account, collecting rental property income, royalties and dividends, selling vacant land, confiscating the contents of a safe deposit box and even selling cars, boats and aircraft. Any money that is seized or collected is forwarded to the Department of Child Support Services to be credited towards the child support arrears owed by the supporting parent. California State income tax returns and Federal returns can and will be seized. Moreover, while child support arrears are owed, professional licenses can be suspended, along with the debtor parents’ passport and driver’s license.