Saturday, March 17, 2007

Child Support and Overtime

Overtime pay pops up often as a wrinkle in determining child support. Years ago (actually, decades ago now), Delco-Remy had mandatory overtime. That sort of overtime creates no problems in determining a child support amount. However, Delco-Remy has gone and not many employers have mandatory overtime. And therein lies the problem: do we count infrequent, non-mandatory overtime into the child support calculations?

Back in 2001, the Indiana Court of Appeals gave us the following guidance on overtime pay:

Mother claims that the trial court erred by failing to express its reasons for excluding Father's overtime income from his gross weekly income. The Child Support Guidelines? definition of weekly gross income includes overtime pay. See Ind.Child Supp. Guideline 3(A)(1). However, such income can be irregular or nonguaranteed, which cause[s] difficulty in accurately determining the gross income of a party. ChildSupp.G. 3, Commentary 2(b). Thus, a determination as to whether overtime should be included in a parent's weekly gross income is very fact sensitive. Id. For that reason, when a trial court determines that it is not appropriate to include irregular income in the determination of a parent's child support obligation, the trial court should express its reasons. Id.; see also Hamiter, 717 N.E.2d at 1252. In addition, the dependability of a parent's overtime income and the parent's ability to maintain such income are crucial factors in determining whether such income should be included in a parent?s weekly gross income. See Thompson v. Thompson, 696 N.E.2d 80, 84 (Ind. Ct. App. 1998). Therefore, the trial court must indicate in its findings and conclusions that it has considered those factors. Id.

Railing v. Hawkins.

Present evidence of the overtime pay and the court must either include or not. If the court does not include the overtime pay into the child support calculations, the court must explain omitting the overtime pay.

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