Slideshow Transcript

1. Slide 1: Child Support for Adult Children
2. Slide 2: C HILD S UP P OR T In re Ma rria g e of E dwa rds
3. Slide 3: In re Ma rria g e of E dwa rds  1982: Ma rrie d  1984: S on b orn  1986: S e pa ra te d  1990: Ma rita l S e ttle m e nt Ag re e m e nt  MS A c h ild s upport orde r provide s for F ’s c ontin ue d s upport of s on a s a n a dult, a nd for s h a re d pa ym e nt of c o lle g e e xpe ns e s .
4. Slide 4: In re Ma rria g e of E dwa rds  “Subject to the power of the court to modify same, Husband shall pay to Wife, as and for child support, the sum of $200 per month, payable on the 10th day of each month, said payments began on . . . March 15, 1990, and shall continue for the Minor Child until further order of this court or until he marries, dies, becomes self-supporting, emancipated, reaches the age of 25, whichever comes first” (Italics added.)
5. Slide 5: In re Ma rria g e of E dwa rds  1998: stipulation for an upward modification to $400 per month  1999: following a contested hearing, another upward modification to $700 per month  2003: F files another motion to modify child support based on a change of circumstances.
6. Slide 6: In re Ma rria g e of E dwa rds  F argues that application of the guideline formula would be unjust or inappropriate, per Family Code, Section 4057.  F argues he had a substantial decrease of income ($87,552 to $38,304).  F argues adult son no longer in the custody of either parent.  F argues son is attending a state university on a full financial aid package.
7. Slide 7: In re Ma rria g e of E dwa rds  M argues the court should apply the guideline formula.  M contends she has “physical responsibility” because when son is not in school, he returns to her home, his “stuff” is there, he receives mail there, and is it son’s address of residence with the college. In addition, the previous school year son came home for Christmas and a week for spring break.
8. Slide 8: In re Ma rria g e of E dwa rds  T/Ct: Denies F’s request.  No “special circumstances” found to depart from the guideline formula.  Applying the guideline formula, the court modifies support from $700 to $432 per month.  The court grants M 100% timeshare and F’s is 0%.  F appeals. Your ruling?
9. Slide 9: In re Ma rria g e of E dwa rds  C o urt of Appe a l: R e ve rs e d.  Tria l c ourt e rre d in de te rm ining c h ild s upport purs ua nt to th e g uide line form ula .  Applic a tio n of th e g uide line form ula wa s “unjus t a nd in a pp ropria te ” due to th e c irc um s ta nc e s of th e c a s e , p e r F .C . S e c tion 4057(b )(5 ).  Ne ith e r pa re nt re ta ine d “prim a ry ph ys ic a l re s pons ib ility.”
10. Slide 10: In re Ma rria g e of E dwa rds  C o urt of Appe a l dis ting uis h e s c a s e from I Re n M arriage of D rake (1997) 53 C a l.App.4 th 1139 (wh e re th e g uide line form ula wa s a pplic a b le to c h ild s upport for a m e n ta lly inc a pa c ita te d a dult c h ild wh os e m o th e r took full responsibility for h is s itua tion a nd c a re ).  Th e fa c t th a t M re c e ive s m a il for s on a t h e r a ddre s s , a nd th a t h e vis its from tim e to tim e , doe s not s upp ort a fin ding s h e h a d prim a ry ph ys ic a l re s pons ib ility.
11. Slide 11: In re Ma rria g e of E dwa rds  N.B .: C om pa re Plumas County Department of Child Support Services v. Rodriguez (wh e re M c ons ide re d th e c us todia l pa re nt wh e n m inor c h ild live d with h e r b roth e r).  C o m p a re I re M n arriage of Katzberg (wh e re fa th e r g ive n tim e s h a re wh ile m inor s on wa s living in a loc a l b oa rding s c h ool).
12. Slide 12: R E LE VANT C ODE S
13. Slide 13: F a m ily C od e , S e c tion 39 01  (a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.  (b) Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.
14. Slide 14: F a m ily C od e , S e c tion 39 10  (a) The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.  (b) Nothing in this section limits the duty of support under Sections 3900 and 3901.
15. Slide 15: F a m ily C od e , S e c tion 40 57  (a) The amount of child support established by the formula provided . . . , is presumed to be the correct amount of child support to be ordered.  (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . . , because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056:  (1) The parties have stipulated to a different amount of child support . . . .  (2) The sale of the family residence is deferred . . . . , and the rental value of the family residence in which the children reside exceeds the mortgage payments, homeowner's insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount.  (3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.  (4) A party is not contributing to the needs of the children at a level commensurate with that party's custodial time.  (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following:  (A) Cases in which the parents have different time-sharing arrangements for different children.  (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent.  (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount.
16. Slide 17: www.Pasadenadivorce.com (626) 683-8113