Calculating Overtime Income in a Utah Divorce
Many clients ask how courts consider overtime income in determining alimony or child support. The answer depends on the context of whether it is being used to calculate child support, alimony, or both. In short, the court has broad discretion to include it in calculating someone’s need for (or ability to pay) alimony but less flexibility when it comes to child support.
For child support purposes, Utah Code 78B-12-203(1) defines countable “gross income” broadly as prospective income from just about any source (wages, salaries, commissions, bonuses, gifts, etc.) with the exception of means-tested welfare benefits like Social Security Disability, Medicaid, SNAP benefits, or the like. Utah Code 78B-12-203(2) goes on to say that income from “earned income sources” – meaning you had to work to earn the money – is generally “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.”
In other words, the presumption is earned income will be based on a 40-hour work week. No more; no less. But the court may go above that if a parent “normally and consistently worked more” in the past. However, if there is already a child support order in place and a parent has not historically worked more than 40 hours per week at his or her job then the court cannot include overtime income in the future.
Courts follow a rule of reasonableness in deciding whether to count overtime income. In essence, they generally try to keep the status quo that existed during the parent’s marriage (whatever that might have been). They are also mindful that a parent can only work so many hours per week before they start to suffer burnout or it adversely affects the amount of time they can spend with their children.
For alimony purposes, Utah Code 30-3-5(8) directs courts to consider “earning capacity or ability to produce income” without limiting either parent to the equivalent of a 40-hour work week. Thus the Court has more discretion to consider overtime income in the context of alimony than it does in child support. That being said, Courts often rely on the child support laws as guidelines for calculating income in the alimony context and gravitate towards setting both parents’ incomes at a 40-hour per week level unless persuaded that would be unfair.
Do you have questions about how alimony or child support will be calculated in your case? Are you paying or receiving a fair amount of support? Give us a call at 855-254-2600.
Overtime was not looked at in my original decree. My ex-husband consistently worked overtime during our 20 year marriage but at the time of our divorce he started working at a place that didn’t offer overtime. He only stayed at that job for about a year and has now been working consistent overtime for the last year and a half. ORS can’t do anything without the judge saying they can look at overtime. What are my options at this point?
Thank you for reaching out to us Shalonna. Please give us a call at 855-254-2600 to discuss your situation. We provide general legal information over this website but cannot provide legal advice specific to your situation in this particular forum.