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While there are a number of states that unilaterally consider overtime wages when calculating child support, the state of Arizona is much more selective on the subject. Overtime that is reasonably foreseeable and which has historically been scheduled may be considered for child support, but consistency is key. If the overtime is random, not guaranteed, or otherwise inconsistent, then the overtime wages should be exempt from the child support calculation.
Arizona Child Support Guidelines
When judges, clerks, and attorneys confer to calculate child support, their calculations are guided by the Arizona Child Support Guidelines. The method follows the Income Shares Model set forth by the Child Support Guidelines Project of the National Center for State Courts, which approximates what the parents would have spent supporting the child if the family was living together. The court then calculates each parent’s gross income and requires the parents to contribute their proportionate share of the calculated child support amount.
According to the Guidelines, the court considers the following when determining a parent’s gross income:
- Severance packages
- Interest income
- Trust income
- Capital gains
- Social security benefits
- Worker’s compensation benefits
- Unemployment insurance benefits
- Disability insurance benefits
- Recurring gifts
- Spousal maintenance
The Guidelines state that income “from any source which is not continuing or recurring in nature” shouldn’t be considered gross income for child support. This leaves much room for interpretation, but generally speaking the clause exempts overtime wages. If your history of overtime is inconsistent and there is no guarantee that you can work overtime week to week, you shouldn’t have to worry about overtime wages being included in your child support.
The exception would be for overtime that has historically been scheduled and is expected to continue. For example, if you have worked 10 hours of overtime every week for the past year, or if your boss tells you that the job includes 10 hours of mandatory overtime a week, those overtime wages could be considered for child support. Similarly, if your actual overtime varies but you have historically worked a minimum of 5 hours of overtime a week, your gross income for child support will probably include 5 hours of overtime wages each week.
Employees who work in a position or industry with seasonal overtime needs (e.g. the retail industry during the holiday season) may be required to consider seasonal overtime wages as part of their gross income for child support. However, rather than increasing the child support payments during the busy seasons, the court would annualize the seasonal earnings and spread them throughout the entire year. That means your child support payments might be a little higher during the rest of the year, but they’d be comparatively lower during the busy season.
Working a second job
Generally speaking, parents in Arizona are allowed the opportunity to pick up additional working hours or a second job without increasing their child support obligation. To protect that right, the Guidelines instruct the court to only consider income that would have been earned by full-time employment. The rules also insist that a child support obligation shouldn’t require an “extraordinary work regimen,” though the definition of what constitutes “extraordinary” may depend on the occupation, working hours, and working conditions.
That said, when it comes to garnishing wages to collect unpaid child support, the state has the right to issue a withholding order to garnish wages from a second job. If you don’t have any dependents and you are at least 12 weeks behind on child support, you could face a garnishment of up to 65% of your wages between both jobs. If you are supporting a family and have dependents, the Consumer Credit Protection Act drops the limit to 55% of your total income.
Modifying child support
Although a child support agreement is a legally binding contract that is intended to remain in effect until the child reaches the age of majority, the law allows the agreement to be modified under certain circumstances. While the primary concern will always be to preserve the child’s best interests, the ability to modify the agreement is one of the few instances where the court may take direct action to help a parent avoid financial devastation—whether it’s a non-custodial parent who can no longer afford the payments, or a custodial parent who needs additional financial support to reasonably provide for the child.
Modifying a child support agreement isn’t easy, but it’s possible when a parent experiences “substantial and continuing” circumstances that warrant a change in terms (ARS 25-503). The law is intentionally vague when it comes to the actual definition of “substantial and continuing,” but it’s generally understood to include situations involving job loss, a significant change in income (usually at least a 10% change), disability, or the birth of a new child. The court can also modify the child support agreement if the child’s need for support changes. For example, if the child develops an illness or injury that will require additional continuing care, the court will likely approve a request to raise the non-custodial parent’s child support obligation.
Alternatively , if the child is accepted to a prestigious private school that caters to their talents and clearly provides a path for a better future career, the court could consider raising the child support payments to cover the additional cost of tuition. That said, the original child support order already took both parents’ income into account, so a modification that raises the child support obligation would also need to provide evidence that one or both of the parents can afford the increased obligation.
On that note, it’s important to remember that while overtime and a second job may not automatically increase your child support obligation once the original order has been signed, the court may consider your increased income if the custodial parent files a petition to modify the agreement. While the Arizona Child Support Guidelines are generally protective of your right to seek additional income without raising your child support obligation, there are provisions that allow recurring income to be included, so it’s unfortunately a bit of a legal grey area. If your former spouse or partner files a petition to modify the agreement and increase your child support obligation, you should consult with a divorce attorney as soon as possible.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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