What income is counted when calculating child support?
This is a great question. In the jurisdiction where I practice family law (Utah), the Utah Code tells you exactly what kind of parental income a court considers in determining child support:
Adjusted gross income shall be used in calculating each parent’s share of the base combined child support obligation. Only income of the natural or adoptive parents of the child may be used to determine the award under these guidelines.
(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.
(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 before 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, SNAP benefits, or General Assistance; and
(c) other similar means-tested welfare benefits received by a parent.
(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.
(b) Gross income determined under this Subsection (4) may differ from the amount of business income determined for tax purposes.
(a) When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.
(b) Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns.
(c) Historical and current earnings shall be used to determine whether an underemployment or overemployment situation exists.
(6) Incarceration of at least six months may not be treated as voluntary unemployment by the office in establishing or modifying a support order.
(7) Gross income includes income imputed to the parent under Subsection (8).
(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 considering, to the extent known:
(i) employment opportunities;
(ii) work history;
(iii) occupation qualifications;
(iv) educational attainment;
(viii) criminal record;
(ix) other employment barriers and background factors; and
(x) prevailing earnings and job availability for persons of similar backgrounds in the community.
(c) If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser 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.
(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.
(1) Each parent’s child support obligation shall be established in proportion to their adjusted gross incomes, unless the low income table is applicable. Except during periods of court-ordered parent-time as set forth in Section 78B-12-216, the parents are obligated to pay their proportionate shares of the base combined child support obligation. If physical custody of the child changes from that assumed in the original order, modification of the order is not necessary, even if only one parent is specifically ordered to pay in the order.
(2) Except in cases of joint physical custody and split custody as defined in Section 78B-12-102 and in cases where the obligor’s adjusted gross income is $1,050 or less monthly, the base child support award shall be determined as follows:
(a) combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table; and
(b) calculate each parent’s proportionate share of the base combined child support obligation by multiplying the combined child support obligation by each parent’s percentage of combined adjusted gross income.
(3) In the case of an incapacitated adult child, any amount that the incapacitated adult child can contribute to the incapacitated adult child’s support may be considered in the determination of child support and may be used to justify a reduction in the amount of support ordered, except that in the case of orders involving multiple children, the reduction shall not be greater than the effect of reducing the total number of children by one in the child support table calculation.
(4) In cases where the monthly adjusted gross income of either parent is between $650 and $1,050, the base child support award shall be the lesser of the amount calculated in accordance with Subsection (2) and the amount calculated using the low income table. If the income and number of children is found in an area of the low income table in which no amount is shown, the base combined child support obligation table is to be used.
(5) The base combined child support obligation table provides combined child support obligations for up to six children. For more than six children, additional amounts may be added to the base child support obligation shown. Unless rebutted by Subsection 78B-12-210(3), the amount ordered may not be less than the amount which would be ordered for up to six children.
(6) If the monthly adjusted gross income of either parent is $649 or less, the tribunal shall determine the amount of the child support obligation on a case-by-case basis, but the base child support award may not be less than $30.
(7) The amount shown on the table is the support amount for the total number of children, not an amount per child.
(8) For all worksheets, income and support award figures shall be rounded to the nearest dollar.
(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.
(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.
(5) If the amount in the order and the amount on the guidelines worksheet differ by $10 or more:
(a) the order is considered deviated; and
(b) the incomes listed on the worksheet may not be used in adjusting support for emancipation.
(a) Natural or adoptive children of either parent who live in the home of that parent and are not children in common to both parties may at the option of either party be taken into account under the guidelines in setting a child support award, as provided in Subsection (7).
(b) Additional worksheets shall be prepared that compute the base child support award of the respective parents for the additional children. The base child support award shall then be subtracted from the appropriate parent’s income before determining the award in the instant case.
(7) In a proceeding to adjust or modify an existing award, consideration of natural or adoptive children born after entry of the order and who are not in common to both parties may be applied to mitigate an increase in the award but may not be applied:
(a) for the benefit of the obligee if the credit would increase the support obligation of the obligor from the most recent order; or
(b) for the benefit of the obligor if the amount of support received by the obligee would be decreased from the most recent order.
(a) If a child support order has not been issued or modified within the previous three years, a parent, legal guardian, or the office may move the court to adjust the amount of a child support order.
(b) Upon receiving a motion under Subsection (8)(a), the court shall, taking into account the best interests of the child:
(i) determine whether there is a difference between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and
(ii) if there is a difference as described in Subsection (8)(b)(i), adjust the payor’s ordered support amount to the payor’s support amount provided in the guidelines if:
(A) the difference is 10% or more;
(B) the difference is not of a temporary nature; and
(C) the order adjusting the payor’s ordered support amount does not deviate from the guidelines.
(c) A showing of a substantial change in circumstances is not necessary for an adjustment under this Subsection (8).
(a) A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. A change in the base combined child support obligation table set forth in Section 78B-12-301 is not a substantial change in circumstances for the purposes of this Subsection (9).
(b) For purposes of this Subsection (9), a substantial change in circumstances may include:
(i) material changes in custody;
(ii) material changes in the relative wealth or assets of the parties;
(iii) material changes of 30% or more in the income of a parent;
(iv) material changes in the employment potential and ability of a parent to earn;
(v) material changes in the medical needs of the child; or
(vi) material changes in the legal responsibilities of either parent for the support of others.
(c) Upon receiving a petition under Subsection (9)(a), the court shall, taking into account the best interests of the child:
(i) determine whether a substantial change has occurred;
(ii) if a substantial change has occurred, determine whether the change results in a difference of 15% or more between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and
(iii) adjust the payor’s ordered support amount to that which is provided for in the guidelines if:
(A) there is a difference of 15% or more; and
(B) the difference is not of a temporary nature.
(10) Notice of the opportunity to adjust a support order under Subsections (8) and (9) shall be included in each child support order.
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