Should the Court Consider Child Support as Income When Setting Spousal Support?

For divorce attorneys in San Diego, one of the most hotly contested issues is typically spousal support. At the end of a divorce case, the parties must agree to a spousal support amount (even if that amount is zero) or have the judge rule on the issue. Spousal support tends to be a contested issue because the law in this area is very subjective and leaves the judge broad discretion to make a fair and just award. In comparison, child support is easier to reach an agreement on because the court is bound by guideline rules and therefore a judge’s ruling is much more predicable. Many parties opt to agree to an amount rather than battle it out and incur significant legal fees and costs.

When making a spousal support award at the end of a divorce case, the court must consider a laundry list of factors outlined in Family Code ยง 4320. These factors focus mostly on the relative income and assets of the parties. The judge will use information regarding the income and assets of the parties to determine each party’s ability to pay support and/or need for support. Another important consideration for this analysis is the marital standard of living. A court will not usually make an award of spousal support which would increase the standard of living of the supported spouse above the marital lifestyle. The marital standard of living is sometimes referred to a “glass ceiling” for spousal support.

In contrast, if one spouse has increased earnings post-separation, the children are entitled to share in those greater earnings. Therefore, child support will not be capped based on any standard of living. A problem presents, however, when the supported spouse receives significant child support which may increase his/her own standard of living beyond what he/she experienced during marriage. In a 2006 California case, the court held that child support is properly considered as income available to the supported spouse to satisfy the marital standard of living.

This seems to be a logical result because the supported spouse is not likely keeping all of the child support received in a separate account and only applying it towards the children’s expenses or the children’s “share” of household bills. Courts do not keep tabs on parents receiving child support to ensure every dollar is used for the sole benefit of the children. In fact, in previous cases the Court found use of child support funds specifically for the receiving parent’s own benefit as a proper use of child support. Although only one case is currently “on the books” regarding this issue, as the law stands, it is proper to ask a court to consider child support as income available to a supported spouse to meet and marital standard of living in a spousal support case.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Read reviews of Nancy Bickford, or call 858-793-8884 for more information about the consultation process.

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