Like so many issues in the law, the answer is- “It depends”. The general rule is that if overtime income is voluntary and not a condition of employment, the overtime income deleted from the support calculation. The answer seems clear-cut and easy enough. The problem is that many workers with over time incomes have worked
overtime for a number of years and the income is actually not an increase or change in their present income.
The child support law asks a number of questions as a guide to Judges looking at overtime issues. Some of the questions are – Did the overtime start after the commencement of the divorce? Is the current excess employment an increase in the past two-year work schedule? Is the excess employment in the nature of a second job? Did the parent change his/her pay structure in order to avoid or reduce a support obligation? Are the excess employment hours voluntary and not a condition of employment? There is not one question but several questions the parent is required to address when asking the Court to disregard overtime income. As with most legal matters, there is no simple answer.
The final question in this issue is usually- “Will a letter from my employer stating the overtime is voluntary be enough to convince the Court the overtime is voluntary?’ It depends, upon the answers to the above questions.
