Both federal and state laws support the strong policy that a parent’s first and principal obligation is to support his/her minor children.  Each parent has equal responsibility to support the child. The court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.

The state has a mandatory uniform child support guideline to determine the amount of child support.  The court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child’s best interest or the application of the guideline is unjust for reasons enumerated in the Family Code. The reasons, however, are very limited, giving the court very little discretion.


(1) Gross Income: includes commissions, overtime, bonuses, rental income, pensions, or benefits: such as unemployment, disability, worker’s compensation, or social security.  If your pay varies from month to month, the court will likely average your monthly income. Some become underemployed, and as such, the court will consider a parent’s earning capacity.  For example, if you are licensed to practice law but instead becomes a bartender because you do not want to pay a high child support, the court can consider what a reasonable lawyer would be making in your general area. (2) Visitation: percentage of physical custody (3) Deductions: mandatory union dues, health insurance for you and children, job related expenses; any other court ordered child and spousal support, FICA, SDI. (3) Tax filing status (4) Financial hardship such as extraordinary health expenses and uninsured catastrophic losses.

The court can further order additional child support for educational or other special needs of a child and for travel expenses for visitation.  The court must order that the non-custodial parent provide health insurance for the child if it is available to you at no or reasonable cost.

The recent case of Launa Morton vs. David Morton, 27 Cal.App.5th 1025 (September 26, 2018). The “total net monthly disposable income of both parties” is a component of the mathematical formula set forth in section 4055 of the California Family Code which is presumptively correct (Section 4053 (k); 4057 (a)).

This case allowed additional basis for income: (1) based on the text of section 4059 and the tax refund cases from other jurisdictions, the court concluded that the parent’s state and federal income tax refunds to be added to the parent’s annual net disposable income  when all of the parent’s income tax withholdings and estimated income tax payments have been deducted from his/her gross income; (2) the court further decided that voluntary contributions to a 401(k) plan are properly included in net disposable income for purposes of calculating child support (section 4058, 4059 (c). These distributions because they are voluntary, represent funds available to the contributing parent; (3) The court further extended voluntary contributions to a medical savings account as additional income in determining spousal support.

Bottom line, when it comes to defining “annual gross income,” which is used in the calculation of annual net disposable income as defined in section 4058, it is income from whatever source derived, except child support payments actually received and income derived from any need-based, public assistance program. (section 4058 (a) (c)). This case now allows the aforementioned income to be included in child support and establishing marital standard of living, for spousal support.

Any questions, you can reach me at my office (310) 601-7144 or email me at [email protected].

CategoryLegal Advice