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Tuesday, January 5, 2016

Mediating Child Support: Some Tips


Mediating Child Support

When couples with children separate, both know that support must be paid.  We've heard of "deadbeat" moms and dads, but in reality, in the almost 20 years that I have been a divorce/family lawyer, I have never met a parent who would purposely shirk their financial obligations to their children to spite their wife.  (Which makes sense because those who don't want to pay child support will not likely want to pay an attorney either, so our paths don't cross.)

In any case - usually, spats over child support result from fear, yielding the following types of accusations: "He's spending this money on his mistress instead of his children".  "She is using it for Botox and alcohol instead of the children".  "He really makes 50,000 a month!"  "She is a doctor!  She chooses not to work to punish me!"

In California, child support is calculated using the formula found in Family Code 4055.   Family law practitioners who are not good at algebra, use this God-sent program named Dissomaster (I've heard it called Discomaster many times).  You just plug and chug and bam, you get a number for child support!

Simple?  Not so much.  As with all computer programs, it's GIGO  (garbage in, garbage out).

What causes most disputes over child support is when one or both of the parents is self-employed, and there is a dispute over how much money is made, and thus, how MUCH support should be paid.

Or, when one or both of the parents' income fluctuates.  (because of seasonal work, or bonuses).

SO....we should go to Court, right?  The Court can apply Family Code 4055 and get a number.

Wrong.  First, it takes money to go to Court.  If you and your ex simply cannot agree on how much money is being made, you will need to hire attorneys (the average family law attorney in Los Angeles charges 200 - 1000/hour; it's more for a Certified Family Law Specialist), who will then file Motions to get into Court to convince the Judge to see it their way.

Secondly, it takes time!  If you are a business owner, you will likely have to hire a forensic to prepare a sophisticated Income Available for Support chart, which comes with bells and whistles - at a steep price.

If your ex is not working, but arguably could be working, you may need the services of a vocational evaluator who can assess him/her, and peg him/her with an imputed income that he/she could potentially be earning.

It's a lot of work.  And with parties with a lot of anger and no trust, it's easy to see why money (which should be paying child support) go to pay attorneys instead.

Issues regarding child support are appropriate for mediation.  Both you and your ex can benefit from discussing your fears which drive you, and talk about the needs of the children in a non-combative format.  Mediation is confidential, so there is no risk of something "being used against you in a court of law".

In mediation, you can use the Dissomaster (Discomaster) to arrive at a number; or, you may choose not to use it at all if you are self-employed.  Ask any attorney or accountant you know - the "numbers game" can be played forever, with no end.

In mediation, here are some tips:

1.  Be real.  Create charts of spending.  What are the real costs of supporting these children?  Do they attend private school?  Do they have tutoring, counseling, soccer team dues?  What about childcare?

2.  Expect costs to increase after a separation.  When you are ONE raising a family, it was tough enough.  Now, if there is only one breadwinner, that person is now supporting TWO families under TWO separate roofs.  Sometimes it's possible to go on living the same way.  The majority of the time, there will need to be adjustments.

3.  Bonus income?  Consider using Ostler-Smith support order.  I discuss it in detail in this blog post.

4.  Consider paying family support so you can deduct it.

What's important is that the children are protected.  After all, would you rather pay for your kids to go to college, or your lawyer's kids?

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