Q. Is overtime a factor in considering child support?
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.
Author: Thurman W. Arnold III