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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87219
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I reside in California and have been paying child support for

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I reside in California and have been paying child support for 10 years. Last year I got a job in which I travel and work internationally approx 50% of the time. When I'm away I receive 2 hours maximum per day overtime, based at 2 hours at my salary for a day worked over 8.5 hours. I receive 8-10 hours overtime pay at my salary rate for Saturday and Sundays. I also receive hazard pay for going to Nigeria at $300 per day and have worked there 2 times in the last year for a total of 65 days.
My oldest son just turned 18 but finishes high school in 1 month when his support will end.
The Ex is now taking me back to court claiming my hazard pay and overtime as income. which will raise my child support $150 from where it currently is for 2 boys. I was told that child support cannot be based on ones overtime only salary by a friend that went through the CA child support system. My salary per year is 60k. My overtime is not consistent and my hazard pay is certainly not. My gross last year was approx $84 k.
My Ex rents rooms to foreign exchange students besides her income from work of 60K and my $850 monthly support. The judge previously negated her rental income,to a stipen so the court will not recognize that as additional income for her, which seems rather unfair. I estimate that rental income at approximately $1500 per month.
Do you have any advise before I go to court on the 21st of May for reassessment of child support?

Jeff Goleta Ca.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation, friend.

On this website, I do not always get to give good news, and I am afraid that this is one of these times.

"I was told that child support cannot be based on ones overtime only salary by a friend that went through the CA child support system."

I am afraid your friend is wrong here. Overtime may indeed count towards child support. The definition of income when it comes to child support is the following under California Family Code section 4058:

(1) Income such as commissions, salaries, royalties, wages,
bonuses, rents, dividends, pensions, interest, trust income,
annuities, workers' compensation benefits, unemployment insurance
benefits, disability insurance benefits, social security benefits,
and spousal support actually received from a person not a party to
the proceeding to establish a child support order under this article.
(2) Income from the proprietorship of a business, such as gross
receipts from the business reduced by expenditures required for the
operation of the business.
(3) In the discretion of the court, employee benefits or
self-employment benefits, taking into consideration the benefit to
the employee, any corresponding reduction in living expenses, and
other relevant facts.
(b) The court may, in its discretion, consider the earning
capacity of a parent in lieu of the parent's income, consistent with
the best interests of the children.
(c) Annual gross income does not include any income derived from
child support payments actually received, and income derived from any
public assistance program, eligibility for which is based on a
determination of need. Child support received by a party for children
from another relationship shall not be included as part of that
party's gross or net income.

As you can see, overtime counts as income. In fact, In re the Marriage of Smith, 225 Cal. App. 3d 469 - Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 1990 states: "We do not mean to suggest that income from overtime work, or from a second job, should be disregarded in determining spousal support, either initially or upon modification."

So she has the ability to try to modify based on this. However, since the overtime differs from time to time, the Court will strive to find the average.

Do you have any advise before I go to court on the 21st of May for reassessment of child support?

Yes.

1) Individuals in your situation may wish to get a letter from employer that states that overtime is not guaranteed and that the employer plans to limit it in the future and it will be a lot less going forward - this may help the Court lower any estimate of the future overtime you'd get.

2) The judge previously negated her rental income,to a stipen so the court will not recognize that as additional income for her, which seems rather unfair. I estimate that rental income at approximately $1500 per month.

One may wish to bring this up again as well and see if the Court is willing to reconsider this.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)

Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87219
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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