Legal Question in Family Law in Massachusetts
Overtime factored into child support
I currently pay child support in an agreement worked out that was acceptable to both my son's mother and myself a year ago, but she is hinting around now that 330 dollars a week doesn't seem fair because I'm taking in considerably more by working overtime .
That being said, our original agreement was based on my 40 hour a week wage, as overtime is ''iffy''. My question:
Can overtime be factored into child support? If overtime is factored into a support payment, would I be out of line in a courtroom to ask a judge what law gives him the power to order me to work more than 40 hours a week? Would I also be able to ask what the consequences would be if I was given that order, and then overtime was not available?
3 Answers from Attorneys
Re: Overtime factored into child support
Overtime is a subject that has been problematic ever since the inception of the Child Support Guidelines in Massachusetts. As it stands now, a court can, but is not required to take into account, overtime. The court looks at whether the overtime has been a regular part of the family's income during the marriage. If so, it usually assesses some support based upon overtime income. If the income is sporadic, that can be argued to the court.
I have always argued that the Court should not be forcing people to work overtime by awarding support that cannot realistically be paid except by working overtime.
In your case, there are several things to keep in mind:
1. Your agreement does not assess support based upon overtime, even though the possibility of overtime was known at the time. Therefore, I would argue that any overtime now is not an unexpected change in circumstances such that there should be a modification of support. You would have to look at the language of the agreement.
Second, if the overtime puts you over 100K per year income, then the amount over 100k is outside the Guidelines.
Third, unless there is a 20% difference in the final calculation of support, the Court should not grant any modification pursuant to the Guidelines.
I'm sure there are more points to argue in your behalf, but that awaits further analysis of your position, based upon your agreement and your situation.
Re: Overtime factored into child support
You could certainly question the judge, however, Massachusetts will look at your average income and set child support accordingly. You will not be required to work more than 40 hours per week, but if you do so, that extra income can and will be considered in calculating child support. If the overtime dries up or you stop working it, you can always apply to the court to modify the support amount downward.
Best of luck.
Re: Overtime factored into child support
You certainly can explain to the judge that there is no guarantee that you will continue to receive overtime. However the law looks at your average income over the year which will include overtime. You will not be compelled to work overtime.
I would stress to the Court this overtime is temporary.
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