Is Overtime Pay Considered for Child Support?

Generally speaking, the answer is no, overtime pay is not considered in the Court’s calculation of Child Support. Knowing the answer, however, is not very helpful if you cannot cite the rule. Paragraph 5(A) of the Arizona Child Support Guidelines Paragraph 5(A) governs the calculation of income for child support purposes and, in relevant part, provides:

Income from any source which is not continuing or recurring in nature need not necessarily be deemed gross income for child support purposes.

Generally, the court should not attribute income greater than what would have been earned from full-time employment.

Each parent should have the choice of working additional hours through overtime or at second job without increasing the child support award. The court may, however, consider income actually earned that is greater than would have been earned by full-time employment if that income was historically earned from a regular schedule and is anticipated to continue into the future.

The court should generally not attribute additional income to a parent if that would require an extraordinary work regimen. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances, including the choice of jobs available within a particular occupation, working hours and working conditions.

The great thing about this rule is the legislative intent is plain as day. So, not only do we know that overtime pay is generally not included for child support income, we also know why.

Namely, children are expensive and parents who want to get ahead by working more than full-time should not be penalized for doing so.

Seems pretty simple, right? However, where there is a general rule, there is an exception.

In this case, the exception is two-fold and may apply if one of the following is true:

(1) the party in question has historically worked overtime hours; or

(2) overtime hours are part of the reasonable work regimen for the party’s occupation. Both of these make exceptions make sense.

If a person has has worked five hours of overtime per week every week for the duration of a ten-year marriage, the parents clearly established a reliance on this income to support their children. Also, if a person knowingly chooses to work in a profession that is known to require extended hours, the extended hours are naturally included in what constitutes “full-time” employment for that person.

To summarize, if you occasionally work overtime and are trying to determine whether the overtime pay should be included in your child support income, ask yourself two questions: (1) Do I have a history of working overtime; and (2) is it common for people in my profession to work overtime? If you answered no to both questions, your overtime income will most likely not be included. However, if you answered yes to either question, you may be in for an uphill battle.