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I have had clients ask questions about the interplay between alimony and a child support recipient’s other income sources and how that affects the calculation of child support.

First, let’s understand how child support is calculated. Child Support is based off of the “Gross Monthly Income” (meaning pre-tax income) of both parents.

Gross income is not limited to income earned through employment. Utah Code § 78B-12-203 governs how gross income is determined for child support calculation purposes:

(1) As used in the guidelines, “gross income” includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.

(2) Income from earned income sources is limited to the equivalent of one full-time 40-hour job. If and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at the parent’s job, the court may consider this extra time as a pattern in calculating the parent’s ability to provide child support.

(3) Notwithstanding Subsection (1), specifically excluded from gross income are:

(a) cash assistance provided under Title 35A, Chapter 3, Part 3, Family Employment Program;

(b) benefits received under a housing subsidy program, the Job Training Partnership Act, Supplemental Security Income, Social Security Disability Insurance, Medicaid, Food Stamps, or General Assistance; and

(c) other similar means-tested welfare benefits received by a parent.

(4) (a) Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. The income and expenses from self-employment or operation of a business shall be reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support award. Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.

* * * * *

(5) (a) When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.

Even if a parent is not employed or is underemployed, BUT CAN work, the court can impute an income to a parent for child support calculation purposes. Again, see Utah Code § 78B-12-203:

(6) Gross income includes income imputed to the parent under Subsection (7).

(7) (a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.

(c) If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week. To impute a greater income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

(d) Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;

(ii) a parent is physically or mentally unable to earn minimum wage;

(iii) a parent is engaged in career or occupational training to establish basic job skills; or

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home.

So what is not included in determining gross income for child support calculation purposes? Utah Code § 78B-12-203 provides:

(8) (a) Gross income may not include the earnings of a minor child who is the subject of a child support award nor benefits to a minor child in the child’s own right such as Supplemental Security Income.

(b) Social Security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent. Other unearned income of a child may be considered as income to a parent depending upon the circumstances of each case.

What else is not included in determining gross income for child support calculation purposes in Utah?

Could it be that alimony paid from one parent/ex-spouse to another parent/ex-spouse is considered “income” to the alimony recipient for child support calculation purposes? We can find the answer that question in the Utah Code, § 78B-12-204, which deals with “adjusted gross income”:

(1) As used in this chapter, “adjusted gross income” is the amount calculated by subtracting from gross income alimony previously ordered and paid and child support previously ordered.

(2) The guidelines do not reduce the total child support award by adjusting the gross incomes of the parents for alimony ordered in the pending proceeding. In establishing alimony, the court shall consider that in determining the child support, the guidelines do not provide a deduction from gross income for alimony.

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Other states take different approaches. As just a couple of examples:

Minnesota

http://www.nvo.com/beaulier/minnesotacalculationofgrossincome

518A.29

CALCULATION OF GROSS INCOME. Gross income includes any form of periodic payment to an individual, including, but not limited to:

• salaries

• wages

• commissions

• self-employment income

• workers’ compensation

• unemployment benefits

• annuity payments

• military and naval retirement, pension and disability payments

• spousal maintenance received under a previous order or the current proceeding

• Social Security

• veterans benefits provided for a joint child, and

• potential income under section 518A.32.

http://ros.leg.mn/bin/getpub.php?type=s&num=518A.32&year=2006

Pennsylvania:

http://www.pacode.com/secure/data/231/chapter1910/s1910.16-2.html

Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient’s gross income must also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing obligee’s college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligee’s general living expenses, inclusion of the alimony as income is appropriate.

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But as for Utah, the Utah child support guidelines do not reduce the total child support award by adjusting the gross incomes of the parents for alimony ordered in the pending proceeding. Utah Code, § 78B-12-204 provides that “[i]n establishing alimony, the court shall consider that in determining the child support, the guidelines do not provide a deduction from gross income for alimony.

(emphasis added)

That “shall consider language is a little mysterious, however. Note that the statute does not provide that the court “shall not provide a deduction from gross income for alimony;” it only provides that the court “shall consider” that the guidelines do not provide a deduction from gross income for alimony. The guidelines are not mandates, and deviations from the guidelines can be made. See Utah Code § 78B-12-210:

§ 78B-12-210. Application of guidelines — Use of ordered child support.

(1) The guidelines in this chapter apply to any judicial or administrative order establishing or modifying an award of child support entered on or after July 1, 1989.

(2) (a) The guidelines shall be applied as a rebuttable presumption in establishing or modifying the amount of temporary or permanent child support.

(b) The rebuttable presumption means the provisions and considerations required by the guidelines, the award amounts resulting from the application of the guidelines, and the use of worksheets consistent with these guidelines are presumed to be correct, unless rebutted under the provisions of this section.

(3) A written finding or specific finding on the record supporting the conclusion that complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case is sufficient to rebut the presumption in that case. If an order rebuts the presumption through findings, it is considered a deviated order.

(4) The following shall be considered deviations from the guidelines, if:

(a) the order includes a written finding that it is a deviation from the guidelines;

(b) the guidelines worksheet has:

(i) the box checked for a deviation; and

(ii) an explanation as to the reason; or

(c) the deviation is made because there were more children than provided for in the guidelines table.

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So what are the odds of getting a judge to “deviate” from the guidelines? Slim to none, in my opinion.

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