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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?
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.
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