Legal Question in Family Law in California
Effect of sales commissions on child support
As a software salesperson I periodically receive relatively large commission checks. This typically happens four to five times a year. Historically, I have made monthly child support payments to my ex-wife (we share custody 51 (she) 49 (me))reflective of my base salary, and then I've made lump-sum payments upon receiving commission checks. She has agreed to the calculation of the lump-sum payments, but I'm curious if there are any parameters surrounding modification of child support based on commission-based income increases. My income varies significantly from year to year such that by simply using last year's income to determine child support wouldn't be fair from year to year (some years I'd be paying a lot when I might not be making a lot; others years vice versa. How would the court handle this scenario?
1 Answer from Attorneys
Re: Effect of sales commissions on child support
I'll assume you are aware of the law regarding setting of guideline support. There is a formula for that and software for calculating the formula.
Your ex is entitled to guideline support based upon your base pay and your commissions. One way to do this is to calculate guideline each time you receive a commission. In other words, you would pay c/s based upon your base pay, each month. Then when you receive a commission, you would recalculate what support should have been for that period and pay her the difference from your commission check. This is obviously cumbersome, but it is the most accurate. If done once a year, it is easier.
The easiest method, of course, is just to pay a percentage, usually 10% for each child. I would argue that it should be of the net, not the gross, since child support in non-taxable. The case of Smith & Osler uses this method, but that case pre-dates the law on guideline support.
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