Parents’ total income is used when calculating child support under the Child Support Standards Act (“CSSA”). To arrive at the total income amount, the most recent year’s Federal tax return is usually used. This includes overtime pay. Overtime pay can be tricky as a source of income because it can be very inconsistent. When the court calculates child support based on CSSA guidelines and finds an award to be “unjust or inappropriate”, it can vary the child support award to either include or not include overtime pay. Here are some different ways that overtime pay can play into a child support award.
- Where overtime was shown to be fairly consistent throughout the past few years:
The Court included overtime pay in the non-custodial parent’s income was Kelley-Milone v. Milone, 256 A.D.2d 554 (2nd Dept. 1998). In that case the Court determined that it was proper to include the father’s overtime pay as gross income, as reported on his most recent Federal tax return, where his overtime pay was “fairly consistent as indicated by the defendant’s Federal tax returns of three consecutive years.”
- Where overtime pay exists in a prior year and then is not available to an employee in current year:
In Taraskas v. Rizzuto, 38 A.D.3d 910 (2nd Dept., 2007), the mother’s prior tax years reflected overtime pay which, as the mother proved, would not be available to her in the current tax year. The Court concluded that since the mother could show that her prior year’s overtime pay would not be available in the current her income would be limited to the base, regular salary, in determining her child support obligation.
Similarly, in Kellog v. Kellog, 300 A.D.2d 996 (4th Dept. 2002) the father provided evidence in the form of a letter from his employer explaining that, due to “unique circumstances”, his income including substantial overtime in the prior year would be inconsistent with this income for the current year. Thus, the Court used the father’s current salary in determining his pro rata share of child support, which did not include overtime pay from the prior year.
- Where overtime pay can be imputed to a parent in the current year:
As you can see from the above discussion, child support obligations are not defined solely by the parents’ current financial condition. Because of this, the court can consider parents’ earning ability and impute income based on the available of overtime hourly to an employee/parent. See, Orlando v. Orlando, 222 A.D.2d 906 (3rd Dept. 1995). This deters parents from adopting a cavalier attitude whereby they can dispose of ability to earn overtime income by merely refusing when it is voluntary overtime.