California - Claiming a Hardship Deduction for Child Support

California recognizes that life happens and sometimes the regular guidelines for determining child support need to be modified to take into consideration a party’s extraordinary financial hardship caused by (1) extraordinary health expenses, (2) uninsured catastrophic losses, and (3) expenses related to caring for other natural or adopted children. 

Section 4070

The statutory language is found in Family Code section 4070, which states that if a parent ‘is experiencing extreme financial hardship due to justifiable expenses’ resulting from specified circumstances, the court may modify child support by allowing a deduction from the income of the party experiencing the hardship. (See also, § 4059, subd. (g).) 

Section 4071

Circumstances evidencing hardship are set out in section 4071.  Section 4071 provides in relevant part: “(a) Circumstances evidencing hardship include the following: [¶] (1) Extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses. [¶] (2) The minimum basic living expenses of either parent’s natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent. 

Section 4071, subdivision (a), provides, “The court, on its own motion or on the request of a party, may allow these income deductions as necessary to accommodate these expenses
after making the deductions allowable under paragraph (1).

But Section 4071, subdivision (b), provides, “The maximum hardship deduction under paragraph (2) of subdivision (a) for each child who resides with the parent may be equal to, but shall not exceed, the support allocated each child subject to the order. For purposes of calculating this deduction, the amount of support per child established by the statewide uniform guideline shall be the total amount ordered divided by the number of children and not the amount established under paragraph (8) of subdivision (b) of Section 4055. 

Section 4072 

Hardship deductions are not automatic, but rather, they are within the discretion of the court. Section  4072.  (a), states, “ If a deduction for hardship expenses is allowed, the court shall do both of the following: 
   (1) State the reasons supporting the deduction in writing or on
the record.
   (2) Document the amount of the deduction and the underlying facts
and circumstances.
   (b) Whenever possible, the court shall specify the duration of the
deduction.”

Section 4073

Furthermore, Section 4073 states, “ The court shall be guided by the goals set forth in this
article when considering whether or not to allow a financial hardship deduction, and, if allowed, when determining the amount of the deduction. “

Sections 4074 and 4075

These hardship deductions shall apply to “Family Support” orders  [§ 4074] but not to Spousal Support orders  [§ 4075].  

What does all this mean?  

If a party seeks an extreme hardship deduction, this must be specifically requested or the court must recognize the need for this on its own motion. The party establishes the need for a hardship deduction by filing a motion to modify support and filing an Income and Expense declaration with the court, pointing out to the court how out-of-pocket expenses have increased significantly due to the financial hardship the party is experiencing. Thus, for wealthy individuals, it is unlikely that a court would find an extreme financial hardship but for Middle Class and lower wage earners, careful documentation may convince the court that an extreme financial hardship should be considered.  

But, be aware that the hardship deduction “is not a ‘foregone conclusion’ . . but depends on “the family’s income, as well as purported expenses,” bearing in mind that one’s “responsibility as a parent ‘[is] not to seek to provide less for some of his children because he had others, but to provide adequately for all of them.’” (In re Marriage of Paulin (1996) 46 Cal. App. 4th 1378, 1382.)   

Obtaining a financial hardship deduction can become complicated and may be an area where an experienced Family Law attorney can help, either by full representation or by having the lawyer prepare the documents for you or appear with you in court for one hearing only.    

Best wishes. 

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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What do the terms “joint custody” and “sole legal custody” mean in California?

Here are the legal terms you need to understand if you are involved in a custody battle for your children:

 *** “‘Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3006.)

 ***“‘Joint legal custody’ means that both parents shall share the right and the responsibility to make” those decisions. (Fam. Code, § 3003.)   But joint legal custody requires the parents’ willingness to cooperate in making medical, educational, and psychological decisions.  The Court of Appeal explains that [in most circumstances, children’s best interests are served by joint legal custody, but where there is acrimony “the reality of their parents’ conflicts unavoidably hampers the realization of that goal." (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 115-116.)  

California courts look at these factors to determine the “best interests of the child”: 

(1) The age of the child. [When a child is 14 or older the court must allow the child to testify in court if the child chooses to testify but if the child is younger than 14, the court has discretion to allow the child to testify.]

 (2) The relationship of the child's parents and any other persons who may significantly affect the child's welfare. 

(3) The preference of the child, if old enough to express a meaningful preference; 

(4) The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity; 

(5) The stability of any proposed living arrangements for the child; 

(6) The motivation of the parties involved and their capacities to give the child love, affection and guidance. 

(7) The child's adjustment to the child's present home, school and community. 

(8) The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical stress. 

(9) The capacity of each parent to cooperate in childcare. 

(10) Methods for assisting parental cooperation and resolving disputes and each parent's willingness to use these methods;

 (11) The effect on the child if one parent has sole authority over the child's upbringing; 

(12) History of Domestic Violence; and

(13) All other factors having reasonable bearing on the physical and psychological well-being of the child.

If child custody becomes a battle, it is in your best interests to retain an experienced Family Law attorney. If you cannot afford to retain a Family Law lawyer, there are services that provide limited scope representation and Family Law attorneys who will provide limited scope representation, such as preparing your court papers or appearing in court for a single hearing. Also, you can go to your local law library and seek assistance from the law librarians who can show you the forms you need for your case. Furthermore, most courts have Family Law Facilitators who can help you. 

Additionally, you may find some of the books below related to child custody helpful. Best wishes. 

Copyright @ 2016 Christine Esser 

If you click on any of the books below, you will be directed to the Amazon website. We may receive a small commission if you make a purchase that will not increase the price you pay.  We have not received anything from the author or publisher of these books for listing them here.