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Overtime – Does It Count? It Depends

Does Overtime Count Toward Support? It Depends

Overtime pay increases a parent’s base income. As income goes up, a parent’s child support obligation increases. In Louisiana, does this extra pay count as part of a parent’s monthly gross income? That depends.

What is Income for Child Support Purposes?

Louisiana law broadly defines gross income for child support purposes. The list below contains examples of what gross income includes:

  • Salaries, wages, commissions and bonuses.
  • Severance pay, pensions, workers compensation benefits.
  • Pensions, annuities, Social Security benefits.
  • Interest and capital gains.

Does the Definition of Gross Income Include Overtime pay?

Yes, since your “wages” include any overtime pay you receive.

Are There any Exceptions to This?

There is an exception. Gross income does not include “extraordinary overtime” if, in the Court’s opinion, including it in gross income would be unfair.

The child support statute does not explain what this means. As a result, each judge has to decide what is and isn’t fair in a particular case. One Louisiana court has held that “extraordinary”means the overtime is not part of an employee’s ordinary job requirements. In that case, the husband voluntarily worked excess hours for a specific short-term family purpose. Once the family broke up, the husband returned to working only his regular hours. The court refused to include the overtime in the father’s monthly gross income.

How Will a Judge Decide if my Overtime Should be Counted?

Whether a court will include your overtime in your monthly gross income generally depends on two things:

  • The likelihood it will be available in the future.
  • When and why you worked overtime in the past.

Are my Past Earnings Used to Predict my Future Earnings?

In a word, “yes”. To determine whether extra hours will be available to you in the future, courts look at your past federal income tax returns and your pay statements, particularly the year to date figures. Proof you earned $20,000 in additional pay every year for the past five years suggests that you will likely earn this additional $20,000 for the foreseeable future.

How do I Challenge the Prediction?

If you want to challenge the conclusion that overtime will be available to you in the future, you need proof. Your employer is the key. If he testifies that future opportunities will be limited (e.g. due to a downturn in your industry), you may be able to convince the court that your past overtime experience does not predict what your future experience will be.

Likewise, if your employer testifies that unusual circumstances such as a fire at the plant or a hurricane caused your extra hours, you may be able to convince the court that your past excess income was the exception, not the rule.

Do my Reasons for Working Long Hours Matter?

Your reasons for working more than 40 hours a week matter. If a parent has worked extra hours for years on a regular basis just for the extra money, it may not be unfair to count that income going forward. In fact, if such a parent decided to stop working overtime just to reduce her support obligation, a court may count the overtime anyway.

Does my Employer’s Overtime Policy Matter?

Yes. If your employer requires you to routinely work extra hours, chances are the money will count toward support. However, an employer may expect its employees to work overtime without requiring them to do so. If she must “volunteer” for extra work to get ahead, a court may consider that a condition of employment and attribute the extra pay to her.

How Will I Know if my Overtime pay Will be Counted?

There is no way to know for sure. The judge will make that decision. However, your lawyer can give you an idea of what may happen if you answer these questions for him or her:

  • How much have you earned from overtime in the past three to five years?
  • Why did your employer ask you, not somebody else, to do it?
  • Did you volunteer to do it?
  • Is working more than 40 hours a week as needed a formal job requirement?
  • Would you be less likely to get promoted if you refused it?
  • Did you work extra hours for a specific reason for example, to make a down payment on a house or new car?
  • Does your company expect to have overtime opportunities for you in the future?

My Overtime is not Guaranteed. I can get a Letter That Says so

Most employers don’t guarantee more than 40 hours a week to employees. But this does not mean courts do not have the authority to include overtime pay in a parent’s gross income for support purposes. Most of the time, they do. If you wish to have this type of pay excluded, you will need to provide evidence to the court that it is both extraordinary in nature and unfair to include it.

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