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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11273
Experience:  Licensed Texas General Practice Attorney
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I AM FROM IL. IF I WORK OVERTIME DO I HAVE TO PAY MORE CHILD

Resolved Question:

I AM FROM IL. IF I WORK OVERTIME DO I HAVE TO PAY MORE CHILD SUPPORT, OR DOES IT STAY THE SAME BASED ON THE 40 HOUR A WEEK I WAS MAKING WHEN WE WERE MARRIED.
Submitted: 2 years ago.
Category: Family Law
Expert:  ScottyMacEsq replied 2 years ago.
Thank you for using JustAnswer. Can you tell me if there is a child support order in place that fixes a certain amount for you to pay, or are you just paying pursuant to an oral agreement with your ex?
Customer: replied 2 years ago.
Yes thr is an order in place, states at the time I was working less than 40 hours a week so only paying 285.00 which was 32% of my net income. Then says defendant shall immeditaly notify if resumes working forty or more hours per week. Attorney should notify other attorney for plaintiff to act upon if appropriate.
Expert:  ScottyMacEsq replied 2 years ago.
And did you notify once you started working 40 or more? Did the order specify that it would change if you were working 40 or more, or that there was a percentage rather than a set dollar figure to be applied to your paycheck?
Customer: replied 2 years ago.
Yes I notified when I was working 40 hours a week again , which made my payment 320. A year later I worked more hours and did not notify of that.
Expert:  ScottyMacEsq replied 2 years ago.
Are you consistently working 50 hours a week? That is, do you average out at that level, or do you sometimes work less than 40, and sometimes more?
Customer: replied 2 years ago.
It doesn't state anything more other than assumes working 40 or more hours per week. Which I did. It does not state that I should notify my attorney after that for the remainder of the child support. It does state 32% of income and not a set amount.
Customer: replied 2 years ago.
Yes my income bounces from week to week but last year it averaged more closer to 50 hours. I think it should be based on the average when we were married which was 40. Does the law not state that? I think its unfair for her to also benefit after the marriage.
Expert:  ScottyMacEsq replied 2 years ago.
Child support is calculated against "net income". That is, you take the 32% (for 3 kids) and apply it against the net income of the obligor. Net income is supposed to mean "all income from all sources" minus the deductions permitted by Illinois child support law. Net income is a flexible concept, though, depending on your judge and the facts of your case. For example, sometimes gifts count as income and sometimes they don't. Loans, too, can sometimes count as income – in other cases they may be excused and not counted. Tax refunds attributable to maintenance payments made to the former spouse are considered income. Deferred compensation contributions, income from investments and bonuses from a closely held corporation, income from stocks and bonds, and the “capital account” at the obligor’s professional firm all have been considered income for purposes of child support. In some circumstances, even the property awarded by the divorce court in the divorce may be considered for child support purposes. Income may be reduced by depreciation expenses in some cases and not excused in other cases.

In short, it's going to be based upon your actual income. It's not based upon your hours, because you get more income when you work overtime than if you were to work 40 hours. The order that sets the child support rate at 32% (rather than a fixed amount every week) gives credence to this, and is what it is by law. Unfortunately, there's no exception that you get to keep the amount you receive over 40 hours. Again, the percentage is applied against your income, not based upon the amount of hours worked. So regardless if you have an increase in your income due to a raise or due to working more hours, it's an increase in your income, and the percentage is applied against that.

So in short, yes, you're going to have to pay 32% of this amount over 40 hours as well.

As to her "benefiting" after the marriage, it's possible that she might benefit from that money and not the children, but without clear evidence to that, the presumption is that child support goes to the children, whereas alimony (if applicable) would go to the ex. Alimony would be set, and would not be adjustable upwards due to an increase in income, but child support is based upon income at the time earned, regardless of whether there was a marriage or not. The legal presumption is that both parents have a legal obligation to support the children, and the state sets it based upon a specific percentage. Other states have a more equitable system (where it considers both parents' income and the amount of time that is spent with the kids), but Illinois considers only the non-custodial parent's income, and imposes a straight line percentage against that.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11273
Experience: Licensed Texas General Practice Attorney
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