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SB-145 Child and spousal support.(1993-1994)

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SB145:v92#DOCUMENT

Senate Bill No. 145
CHAPTER 935

An act to amend Sections 4057 and 4323 of, and to add Section 4057.5 to, the Family Code, relating to family law.

[ Filed with Secretary of State  October 08, 1993. Approved by Governor  October 08, 1993. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 145, Calderon. Child and spousal support.
(1)  Existing law sets forth the statewide uniform guideline for determining child support. Under existing law, the amount calculated under the uniform guideline is presumed to be the correct amount of child support, but this presumption may be rebutted by facts showing that application of the guideline would be unjust or inappropriate in a particular case because one or more specified factors is found to be applicable and the revised amount is in the best interests of the child. Among these factors is the income of a parent’s subsequent spouse or nonmarital partner which helps meet that parent’s basic living expenses, thus increasing the parent’s disposable income.
This bill would delete this factor, and instead provide that the income of the child support obligor’s or obligee’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except as specified.
(2)  Existing law provides that, except as otherwise agreed upon by the parties in writing, there is a rebuttable presumption of a decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex, whether or not the parties hold themselves out to be husband and wife.
This bill would also provide that the income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(3)  This bill would incorporate additional changes in Section 4057 of the Family Code, proposed by SB 541, to be operative only if SB 541 and this bill are both chaptered and become effective on January 1, 1994, and this bill is chaptered last.

The people of the State of California do enact as follows:


SECTION 1.

 Section 4057 of the Family Code, as added by Section 138 of Chapter 219 of the Statutes of 1993, is amended to read:

4057.
 (a)  The amount of child support established by the formula provided in subdivision (a) of Section 4055 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, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court finds, in writing or on the record, that application of the formula would be unjust or inappropriate in the particular case and that the revised amount is in the best interests of the children:
(1)  The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065.
(2)  The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 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.

SEC. 1.5.

 Section 4057 of the Family Code, as added by Section 138 of Chapter 219 of the Statutes of 1993, is amended to read:

4057.
 (a)  The amount of child support established by the formula provided in subdivision (a) of Section 4055 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, consistent with the principles set forth in Section 4053, 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 under subdivision (a) of Section 4065.
(2)  The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 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.

SEC. 2.

 Section 4057.5 is added to the Family Code, to read:

4057.5.
 (a)  (1)  The income of the obligor parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner.
(2)  The income of the obligee parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee’s subsequent spouse or nonmarital partner.
(b)  For purposes of this section, an extraordinary case may include a parent voluntarily or intentionally quitting work or reducing income.
(c)  If any portion of the income of either parent’s subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, discovery for the purposes of determining income shall be based on W2 and 1099 income tax forms, except where the court determines that application would be unjust or inappropriate.
(d)  If any portion of the income of either parent’s subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, the court shall allow a hardship deduction based on the minimum living expenses for one or more stepchildren of the party subject to the order.
(e)  The enactment of this section constitutes cause to bring an action for modification of a child support order entered prior to the operative date of this section.

SEC. 3.

 Section 4323 of the Family Code is amended to read:

4323.
 (a)  (1)  Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2)  Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b)  The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c)  Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.

SEC. 4.

 Section 1.5 of this bill incorporates amendments to Section 4057 of the Family Code proposed by both this bill and SB 541. It shall only become operative if (1) both bills are enacted and become effective on January 1, 1994, (2) each bill amends Section 4057 of the Family Code, and (3) this bill is enacted after SB 541, in which case Section 1 of this bill shall not become operative.