Yes, if there is already a history of overtime - meaning a court won't
order a parent to work overtime who hasn't been earning overtime (there
is case authority that a court cannot order a parent to work more than
a regular work regimen), but if they have already been working it, then
the court must take that history into account when projecting future income
for purposes of guideline support (Xspouse or Dissomaster, depending which
California county you are in).
The black letter rule is that overtime earnings must ordinarily be include
in the parent's gross income.
County of Placer v. Andrade (1997) 55 Cal.App.4th 1393. These earnings may be excluded if:
- There is evidence that it is unlikely it overtime income will continue
as, for instance, where there has been a change in employment conditions
or possibly if the parent is no longer willing to accept voluntary overtime;
Imputing overtime in the calculation would force a parent to work an "excessively
onerous work schedule".
Marriage of Simpson (1992) 4 Cal.4th 225, 228, 234-235.
When a parent ceases to work overtime, requires the parent's income
to be tied to an "objectively reasonable work regimen." This
is defined by "established employment norms." Much may depend
upon the parent's occupation, since many people work more than 40
hours per week.
Note that when a parent takes a second job to make up for the impact of
support payments, that income must also be factored in. If it is earned,
it must be included. Some courts may impute overtime if a parent thereafter
stops working it, as long as the work regimen is not excessive.
Please see this Blog article about
temporary support. These principles apply equally to spousal support.
Andrade is a child support case against a county collection agency.
Simpson involved a determination of both child and spousal support. In that case
the trial court had found that the father's shift in work was motivated
primarily by his desire to shirk his family obligations. One of the things
that compelled this finding was the timing of dad's change of employment
- immediately after the court's initial support awards, surprise!
It was therefore a simple matter to imply an earning capacity equal to
what he was doing before the divorce, and before he switched jobs.
For more articles about overtime and support, click here!
Author: Thurman W. Arnold, III