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overtim hrs counted for child supp.

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yessy

Member
What is the name of your state?
CA
i am not clear but are overtime hours counted for childsupport or can we ask for them not to and to only count 40 hours?? is there a way or a form we can fill out to get a review on the change for childsupport? The other parent's lawyer counted the gross . he works between 50-60 hours a week and she works only 30 hours.thanks for previous responses... but still not clear!!:(
 


M

Myheart2yours

Guest
Your best bet would be to contact an attorney.

From reading your previous posts, seems like there's more of a situation here than just support.
Now, if this has already gone to court, it may be too late. The time to contact an attorney is when you are first notified of any court actions pending. In most yellow pages, you can find attorneys that offer free first consult or free phone time.
Look around.
Good luck
 

I AM ALWAYS LIABLE

Senior Member
yessy said:
What is the name of your state?
CA
i am not clear but are overtime hours counted for childsupport or can we ask for them not to and to only count 40 hours?? is there a way or a form we can fill out to get a review on the change for childsupport? The other parent's lawyer counted the gross . he works between 50-60 hours a week and she works only 30 hours.thanks for previous responses... but still not clear!!:(



My response:

The California Family Code § 4058 definition of "annual gross income" is broad enough to include overtime pay - - under the term "wages" or the general description of "income from whatever source". [County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, 1396, 64 Cal.Rptr.2d 739, 740]

Indeed, it is error to ignore predictable overtime (based on past overtime earnings) in the income calculation unless the court determines (from admissible evidence) it is not likely to continue in the future. [County of Placer v. Andrade, supra, 55 Cal.App.4th at 1396-1397, 64 Cal.Rptr.2d at 741]

Adjustment where past overtime and bonus income not likely to recur:
Past bonuses and overtime earnings ordinarily must be included in the "annual gross income" computation. [County of Placer v. Andrade, supra, 55 Cal.App.4th at 1396, 64 Cal.Rptr.2d at 741]

The court cannot ignore predictable bonuses and overtime simply because they occur sporadically (rather, an average should be included in the calculation). But, pursuant to Family Code § 4060, excluding past bonuses and overtime from the gross income calculation is permissible if the court determines the parent is unlikely to receive them in the future - - e.g., because admissible evidence shows a change in employment conditions or that the parent is no longer willing to accept voluntary overtime (but in the latter case, the court still has discretion to consider the parent's overtime earning capacity). [County of Placer v. Andrade, supra, 55 Cal.App.4th at 1396-1397, 64 Cal.Rptr.2d at 741 - - disregarding parent's overtime and bonus pay for past 2 1/2 years reversible error where no evidence they were not likely to be paid in future]

IAAL
 
O

oneandonly

Guest
you are most welcome~

there are some things that do effect support in CA and one of the most important is Parenting Time percentage.
Was this considered?
Also, know that in CA, BOTH parents are responsible for support-meaning that it is a shared income state.
Was her income considered?
 

nextwife

Senior Member
How much is "enough"?

IAAL, a question:

a. If a business has been financially able to pay bonuses in the past, the financial reality is that they may not be necessarily be able to in the future. Markets change. Businesses that have done well in the past go bust. Doesn't such a presumption make CP responsible to pay CS on sums the employer has NO obligation to pay them?

Certainly averaging a "short cycle" such as three years in an interest rate sensitive industry, like mortgages, can give a very false financial picture if one picks three "up" years, just prior to the inevitable "down" cycle. Do the courts recognize this, or just make the NCP responsible to pay CS on amounts his employer chooses whether to pay or not (isn't that the definition of BONUS?). Because you can't modify retroactively, and most won't know until year end that the bonus cannot be paid that year.

Does the number of years used in "averaging" vary with the typical cycle of the given industry so that if reflects the "average" reality of pay for that industry?

Wonder if the bonuses at some Mutual Funds will be the same this year? Especially the funds that lost a bunch of institutional investors?

b. Overtime. If a person is unfortunate enough to have their CO established during a period in their life in which they are working an extra job, are they forever (or at least until their children are 18) OBLIGATED to work 60 hours a week? If they quit second job, are they "voluntarily underemployed"? And if they don't, does CP get to come on here and complain that NCP is "not even home" during most of the scheduled visitation time so they want to cut that time back, etc?

Seems that as long as the families have what's needed to live, parents should have a right to cut EXTRA hours to spend time with their families while they can. It's a choice I made, giving up a second job and the extra income, because I didn't have the stamina anymore and my SNs daughter required more of my time. So we go out less, shop for better clothes bargains, watch older 19* TVs and drive older cars and so on. Big deal, is our kid "sufferiing"? Not in the least.

Unltimately, the important thing is the time spent with family. My kid will remember that more than whether she gets a GameBoy or $90 basketball shoes. It's hard enough for NCPs to get the time they need to spend with their kids. I know I cherish all the time my dad spent DOING THINGS with me before he died. Any extra material things never were as important - and today are not ever remembered. I'd take the time together with dad over the money and the extra "stuff" it could have bought anyday. He gave me all the "support" I needed., even if it wasn't always the same MONEY my friends parents brought home.

I realize this is merely perspective, but I think that the concept that "support" is ONLY money, is a false premise.
 
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yessy

Member
you guys are so right!! some times he can't work extra hours but he is home to spend time with all of us. we all enjoy it even though we might not be able to go places or go shopping we do a lot of fun things together-the best things in life are free-:) their mom might buy them all these things and take them to the movies or Disneyland every weekend!!! but they don't have that special bond they have with their dad and me and my kids. time is precious....
 
J

jez51

Guest
Just my 2 cents

I think CS should be based on 40hrs period, if the NCP gets a little overtime or a once a year bonus, that should be theirs, they've got to have money to take care of their kids when they have them, and they got rent to pay like everyone else.
Nextwife is right, family is more important....
 
O

oneandonly

Guest
While I agree, Jez--CA does take into consideration the things ..

previously mentioned.

The plan, for lack of a better word, in CA, would be to increase parenting time--that percentage plays a BIG part in CA support amounts....
For support issues in CA, the CSE office will surely request at least 3 previous pay stubs and possibly the previous years taxes--is this fair when overtime is obviously going to be shown? Something that might NOT be steady? OF course not!
So, my approach would be to increase that parenting time--
But, as always, seek the advice or representation of an attorney~ (not one myself, just been through Ca cse)
 
J

jez51

Guest
No it's really not fair, parenting time should be 50/50 anyway regardless of CS. My nephew is going through something similar, his ex wants a raise based on his overtime, but no one can get through her head that he only gets the overtime during the summer months, and he's lucky if he gets 40hrs in the winter, so he puts his overtime pay in savings to makeup for the lost hours in the winter. Hopefully when they go before the judge he'll understand what she doesn't.
 

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