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I am a traveling construction worker. My ex is taking me…

Hi there, I am...

Hi there, I am a traveling construction worker. My ex is taking me back to court to renegotiate child support. Is the per diem that I make on the road considered as income? I understand that all states are different. We are in South Carolina.

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

South Carolina. Georgetown county

Lawyer's Assistant: Have you talked to a lawyer yet?

Not yet

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

She is filing the case through Department of Social Services. Is there help for me as well through them or do I need to hire a lawyer

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Answered in 23 minutes by:
3/9/2018
Sean K
Sean K, Family Law Attorney
Category: Family Law
Satisfied Customers: 411
Experience: Family Law Attorney in Private Law Firm
Verified

Hi, I’m Sean and I will be assisting you as an expert today. I’m an attorney with more than 20 years of experience. It is my goal to provide a solid overview of your situation. Whether the analysis is good or bad as to your matter, I want to make sure you understand any points you need and that you have options to better address the questions you have. If I am able, I will also provide you with some resources.

I am sorry you are experiencing this issue.

I have attached as a link to this document the actual South Carolina Child support guidelines for your review. You want to specifically look at pages 3-6. These guidelines set out what is included and what is not included in child support. The good news, per diems are not listed. The less than good news, per diems are not specifically excluded. I have also included here a link to the online SC child support calculator.

So the answer comes in how you include them, if at all. The South Carolina Child Support Guidelines are pretty broad when they look at income, but having dealt with this in the past, I can share some strategies on how best to approach not including them.

First, a letter from your employer stating that the per diems are only for when traveling to allow for your work to occur and that they are not for an income supplement.

Secondly, you want to identify specifically what the per diem is for and how it is used.

For instance, if it is for gas, lodging and food and is $50 a day, if you can show receipts for gas, food and lodging that amount to $50 then the net on that is zero. Where you could potentially run into issue is if you get a $50 a day per diem and only spend $25 (or any amount less than $50). If this is the case, then the per diem will almost assuredly be included.

This foundation is completed by the argument that the work you do allows you to earn the income on which child support will be based and other than being able to do the work, you receive no benefit from the per diem other than bing at the job site. The example is that if your work paid for a cell phone that you could use for personal use, then the cost of the cell phone service could potentially be used as income. If the per diem is all work related and not for personal use then you have the best foundation.

Finally, if the case is being filed through DSS, the process will be a meeting at the DSS office where you will meet with a case worker or child support attorney who will look at income numbers, health insurance costs, other children in the equation, work related daycare and any other applicable factors (see the attached guidelines for more info) and then the numbers will be put into South Carolina's child support calculator and the resulting number will be the amount.

There is not a lot of, if any negotiation, available on the amount as the law in SC says an amount resulting from the guidelines is presumed to be correct and it would be on you to show why it should not be as calculated.

A couple of other points, generally through DSS, recalculations are only every 36 months though state law does allow for review upon a substantial change of circumstances.

DSS does not actually "represent" either you or her, so they will just run the guidelines. As to assistance from them, it will only be the staff person collecting the information and running it.

The result would be put together in a Court order that everyone would sign and then it would go off to the Court for a Judges signature and that would become the Court ordered amount.

Keep in mind it is always possible to directly negotiate with your ex for an amount to be paid and cut DSS out of the loop.

Please note: This is general information for educational purposes only and is not legal advice. There is no specific course of action is proposed and no attorney-client relationship or privilege formed within this conversation.

If you have any follow up questions it would be my pleasure to answer them. As experts we only get credit for the time and effort we spend on our answers if you rate us positively - 5 stars is definitely appreciated but not required! There is no cost associated with you rating me and you can still ask follow up questions after rating me and I will respond.

One final point, there may be a delay between your question and my answer; this is because I'm either not at my computer or helping someone else but rest assured, if you ask, I will provide an answer. Thank you again.

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Customer reply replied 1 month ago
Thank you , the attachment was very helpful. Recent developments in the “saga of the ex wife” she now is with holding the children from me until after the hearing. I have visitation rights that were recorded in court 7 years ago. Is she able to do that even though I have rights?

So two parts to that answer. Is she violating your prior order. Sure sounds like it. Can she do it at her sole decision. She is not supposed to and a Court will not look kindly on that. Does it happen just like this all too often? Unfortunately it does.

In the past people have contacted a party denying them visitation and asking in writing. Even saying you want to know the time the next visitation will be. Don't blow up her phone but the goal is to get her to respond, in writing, if she already hasn't. Then at the hearing present that to the Court. Judges don't like it when people violate orders.

If you would, please consider rating me, 5 stars are always appreciate. Ratings are how we are evaluated and just wanted to mention this.

Best of luck and you can still ask questions after the rating.

Sean K
Sean K, Family Law Attorney
Category: Family Law
Satisfied Customers: 411
Experience: Family Law Attorney in Private Law Firm
Verified
Sean K and 87 other Family Law Specialists are ready to help you
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Customer reply replied 1 month ago
Thank you for the timely response. And I completed the rating. One more question, we filed papers in Arkansas 7 years ago. I am in Florida now working and the dad hearing is in SC. A lot , I know, but I do not have a copy of the order and the lawyers office only keeps records for 5 years. What’s the best way to find a copy of that order besides flying back to Arkansas ?

Do you remember the county in Arkansas?

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Customer reply replied 1 month ago
Mississippi county

Stand by...

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Clerk of Court in Mississippi County Arkansas is

Leslie Mason

There are two districts

Chickasawba District

Post Office Box 1498 Blytheville, AR 72316(###) ###-####/p>

Osceola District

Post Offie Box 466 Osceola, AR 72370(###) ###-####/p>

I would reach out via phone and ask for a copy via mail.

If you don't remember which district, call one and if not there, the other.

Hope this helps!

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Customer reply replied 1 month ago
It did! Already have a copy of the order coming. I have a lot of info to put together along with that order. I have the past 7 years receipts of child support and other money that I have sent. How many times a year I’m home and with the children. One of the three isn’t mine and I don’t have custody of but I still support her and see her just like my own.
What is the best way to present all of this to the court and will a judge even look at the support that I give to the third child to decide if I am doing the right thing?

I would have all information in document form and organized for the Court. I would also have the certified copy of the Order. That the court an take judicial notice of.

The receipts will be critical for the support paid. Unfortunately on the non-biological child, the Court cannot consider that in calculating child support directly, but most assuredly mention that so the Court can have the best and most complete picture.

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Customer reply replied 29 days ago
Hey Sean,
Do I found out today that there will be no judge at this hearing with dad, only a “child support speacialist” also all I’m required to bring is a photo I’d and a check stub. This sounds more and more like I should take this to actual court for a judge to look at all the evidence and let him decide,
Two questions 1: am I required by law to go to this negotiation? And 2: how can this be a court ordered summons of payment if there’s no judge?
Sincerely
Feeling framed in sc

So South Carolina uses the child support division of the Department of Social Services if child support is requested via DSS. State law allows for the "Summons" for the hearing/conference. The ID and pay stub is to verify you are who you are as they will ask you with an agreement to sign off on their calculations and the pay stub is because state law requires pay to be verified. Now, a tax return or a statement from an employer will work as well.

What they will do is review all information and then enter it into the South Carolina Child Support Guidelines and based on SC's formula it will generate an amount of support. The process is set to allow for Court review and you can request/appeal to a Family Court judge to review. The SC Guidelines are presumed to be the accurate amount of child support but the question is making sure the right information goes in to get the right result.

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Sean K
Sean K
Sean K, Family Law Attorney
Category: Family Law
Satisfied Customers: 411
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Experience: Family Law Attorney in Private Law Firm

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