I recently got divorced and my lawyer is convinced that my Per Diem is considered income and needs to be included into my calculations for Child Support.

I disagree and told him Per Diem is not considered income and is therefore not taxable. At any rate, I'm making the payments and I need to have my obligation lowered.

Has anyone here had a similar situation with CS?
If so, can you recommend a good lawyer to speak with.

I'm in Fort Worth, Texas

Thanks in advance!

 

"For child support purposes, Net Resources = total earnings, minus Social Security taxes, income taxes for a single person, and dependent health insurance; calculator not for use if monthly net resources exceed $8,550 per Family Code § 154.125(a)"

Unfortunately since per diem is part of your total earnings, you can't exclude it. You can always negotiate an amount (Texas only issues child support *guidelines*), but good luck with that. Most exes go after the money at full speed.

 

Every state is different. See what the IRS has to say about per diem - it's not taxable, it's not included in your AGI on your taxes, and it's not even reportable. From where I sit, per diem absolutely is NOT income; it's meant to offset expenses incurred as a result of being required by your job to be away from home.

Think of it this way, if your company fed you three meals a day while you were on the road at no charge to you, would your lawyer have you declare the average cost of a comparable meal in that city as income?

I am neither a CPA nor an attorney...research IRS pubs and your state requirements for child support on your own.

 

....or listen to the family law attorney who probably has dealt with per diem in the past and has the expertise that you came onto a pilot's forum to get.
Also - in family law - straight from the lawyers/judges mouth - best interests of the child will overrule the *law* in family law.

 

I had this exact thing happen and in my state, the judge ruled per diem (which is REIMBURSEMENT for expenses) is allowed to be included in income, BUT only after related expenses have been deducted. Meaning if you get 48 bucks a day, subtract what you spent on tips, meals, etc and whatever is left over is added to income. I usually spend 50-75% , but I told her I would gladly spend 100% in order for her to get 0. She settled on 400 bucks per year.


Illinois BTW

 

From illinois case law appeal ruling.

"We therefore conclude that per diem allowances for travel expenses generally constitute income for the purpose of calculating child support. This income, however, is subject to reduction to the extent that the child support payer can prove that the per diem was used for actual travel expenses and not for his or her economic gain."

 

Seabass,

I had this VERY thing happen during my divorce in Florida. I was in the military at the time, and per diem was not a constant source of income and did not show up on my pay statement, so it was never an issue.

Fast forward to a later recalc of child support. I'm now a commercial pilot, and per diem is paid for every day of every trip, and it shows up on my pay stub.

Same lawyer, same state, and she was trying to tell me that per diem had to be included. I knew it didn't, but she wasn't taking that for an answer.

USMCFLYER, the lawyer isn't always right. They're just as lazy as anyone else. Follwing my "I can't be the first person this has happened to..." mantra, I researched the issue online and found multiple Florida caselaw citations in Findlaw supporting my position. Showed her all that material and she came around. She should have been paying ME. And I wonder how many other guys she helped pay more child support than necessary...

So, Google is your friend. Your state may require it to be counted, but then again, they may not.

Assuming your divorce lawyer knows everything there is to know about divorce law in your state is one of the biggest mistakes you can make in the process... Add potentially very costly. Do your own homework and stay on top of them.

 

I am neither a CPA or an Attorney, but I am fairly certain that Per Diem is Non-Taxable. So is it "income"?? I am not sure that it is.

Each layover city has a dollar figure published online. (meals and incidental expenses) M&IE.. If your airline's Per Diem rate is below that amount for the layover, technically you can write off the difference.

Get an interpretation from your CPA and/or Atty..

Sorry to hear about your situation.

V/R

 

Per diem is expense reimbursement, not income.