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There is a wide gambit of income streams that the court may consider in making orders for child support. Before beginning divorce proceedings, consider California Family Code section 4058, which defines the extent of income that the court would use:
- The annual gross income of each parent means income from whatever source derived, such as 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, spousal support from a previous marriage, income from the proprietorship of a business, and employee benefits or self-employment benefits.
- 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.
- 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.
It is fair to say that any and all money you make can be considered in making an order for child support. Obviously, the more money you make, the greater your ability to pay child support if you are ordered to pay. Conversely, if you are the low-wage earner compared to the other parent, you will have a greater need for child support.
However, if one parent is not contributing towards a child’s need at all, the court has the ability to attribute income to that parent based on that parent’s earning capacity. The court would consider evidence showing what jobs a parent could actually do within a geographically close area to their residence that would also not prevent them from caring for their children. After all, if the paying parent also has to use daycare, that expense would certainly weigh into what amount of income, if any, should be attributed.
The court will not consider any welfare/food stamps or cash aid that the parent is receiving in determining their gross income. If a parent is receiving cash aid, then the Child Support Services Department will reduce the money that the recipient will be receiving after factoring in the child support that is being paid.
Additionally, although the court does not consider as income the child support received for a child of another relationship, the court can decide to not award that party a hardship deduction (discussed elsewhere) if that parent is receiving child support from the other parent in that case.
Overtime and Seasonal Work
In addition to a parent’s regular income as set forth above, the court can also consider a parent’s overtime or other irregular income in making an order for child support. This is squarely addressed in California Family Code section 4064, which states that “the court may adjust the child support order as appropriate to accommodate seasonal or fluctuating income of either parent.”
When it comes to the issue of overtime, the court can factor the overtime into a parent’s gross annual income in making an appropriate child support order. Alternatively, if the parent receiving the overtime can show that his/her overtime is sporadic at best, then an argument can be made as to why the overtime they receive should not be considered when calculating Guideline Child Support. If a parent stops working overtime once they are served with the paperwork for child support only to resume working overtime after the hearing, a strong argument can be made to always consider the overtime, and the court likely will, if a future hearing is requested once the overtime is discovered.
If work is seasonal, such as construction work, the court may average the parent’s income over the entire year to reflect these seasonal fluctuations in income. With this arrangement, the parent with the seasonal income can stockpile additional savings during peak season to pay a potentially higher support order for those periods of the year when he or she works less.
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Child support negotiations can be extremely complicated and contentious. If you need assistance in court or in alternative dispute resolution, trust our experienced Covina divorce attorney. He has a decade of experience in assisting people with their legal problems. Let us advocate for you.
Contact us at (626) 788-9864 or fill out our online contact form for a free case consultation. We look forward to working for you.