When a family has been divided by divorce, there are sometimes harsh feelings between the former spouses. When children are involved, those feelings may impact how parents feel about child support. Writing a check to the other parent may feel like paying that parent rather than supporting a child, and the amount may seem unfair. Indiana courts calculating Indiana child support have the benefit of the Indiana Child Support Guidelines adopted by the Indiana Supreme Court to help arrive at the fairest amount that benefits the children without economically devastating the non-custodial parent.
Calculating Indiana Child Support in Unique Cases
The Guidelines provide a basic amount of support based on each parental income and the children’s anticipated expenses. Still, each situation is unique, such as when a parent is self-employed, a child has special needs or unusual medical expenses, or there has been a remarriage. Consultation with an experienced Indiana child support attorney is the best way to ensure that the amount is in accordance with Indiana Child Support Guidelines and Indiana court decisions interpreting those Guidelines.
Calculating Indiana Child Support in Cases of Voluntary Underemployment
One somewhat unique situation is when a parent is voluntarily unemployed or underemployed. In these cases, that parent’s past employment, education, intelligence, and skills may suggest that he or she should be earning significantly more than he or she is reporting as income. Indiana Child Support Guideline 3A(1) provides that a parent’s weekly gross income includes the “actual weekly gross income” of a parent if employed to full capacity; however, if a parent is unemployed or underemployed, the weekly gross income includes the “potential income” of the parent. Under this Guideline, if a court finds a parent is voluntarily unemployed or underemployed without just cause, it may calculate support based on the parent’s potential income by determining employment potential and probable earnings level based on work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.
The commentary to the Guidelines provides that one purpose of using a parent’s potential income is to discourage a parent from taking a lower paying job to avoid the payment of significant support. Another purpose is to allocate the support obligation fairly when one parent remarries and, because of the income of the new spouse, chooses not to be employed or to work fewer hours.
As an example, in the case of Marshall v. Marshall, the trial court found that the mother was underemployed because she was staying home to care for a new baby she had with her new husband. The Court of Appeals affirmed the finding that the mother was voluntarily underemployed. However, it reversed the calculation of the mother’s child support obligation in light of her being underemployed. It also ordered the trial court to recalculate the mother’s weekly gross income based on her potential income as a self-employed cosmetologist. In doing so, the trial court was directed to use receipts, tax returns, schedules from her salon, and other records that were in evidence.
Overtime in Child Support Calculation
When calculating Indiana child support, another unique situation arises when a parent’s income includes overtime or bonuses. Indiana Child Support Guideline 3A(1) states that weekly gross income includes salaries, wages, bonuses, and overtime. However, while bonuses and overtime pay are included in weekly gross income, they can be excluded in the trial court’s discretion if the trial court determines that the bonuses or overtime pay are not dependable or would place a hardship on the parent to maintain.
An overlying theme in handling items like this in the calculation of weekly gross income is to ensure child support is based upon dependable income, while at the same time providing children with the support to which they are entitled. If income in the form of bonuses or overtime pay is dependable, it should not be excluded without proper consideration. An Indiana trial court should only exclude a parent’s overtime pay and additional income from weekly gross income if that additional income is found not to regular or dependable.
Contempt for Failure to Pay Child Support in Indiana
Under Indiana law, contempt is a remedy available for failure to pay child support when the failure to pay resulted from a willful failure to comply despite the financial ability to do so. If a parent does not pay her child support obligation as ordered by a trial court, accumulating a significant arrearage, and she gives no reason for this failure based on her financial ability, a contempt finding will be upheld, as was the case in Marshall v. Marshall.
In Indiana, the trial court is given broad discretion to award attorney’s fees to either party. Calculating Indiana child support correctly and paying it on time will avoid contempt and attorney’s fee awards.
If you are facing a child support situation, stop wondering how to calculate income for child support in your unique case and get answers by calling an experienced Indiana family law attorney. Calculating Indiana child support requires consideration of the Indiana Child Support Guidelines as well as Indiana courts’ interpretation of those Guidelines. Take the first step in caring for your children by contacting Julie A. Camden of Camden & Meridew, P.C. through our online form or calling 317-770-0000.
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