In Georgia, if you receive overtime pay, even sporadically, it will be included in your income for purposes of a child support calculation.
The Georgia child support guidelines require that all income, of any kind, and from any source is included in a child support calculation. A letter from your employer (or similar evidence) stating that overtime is not guaranteed will not exclude your overtime pay from your gross income for purposes of child support.
For example, in 2009, the Georgia Supreme Court overturned a lower court’s decision that refused to include a parent’s overtime pay in the child support calculation. See Evans v. Evans, 285 Ga. 319 (Ga., 2009).
In this case, the lower court found that the non-custodial parent’s gross income was $5,000 per month, but refused to use that amount for purposes of that parent’s child support calculation because that income “includes a significant amount of overtime that is not guaranteed.” Id. at 319.
In reversing the lower court’s decision, the Georgia Supreme Court cited the relevant portion of the child support guidelines, which states that “…in determining the gross income of each parent in the process of setting the presumptive amount of child support, gross income ‘shall include all income from any source, before deductions for taxes and other deductions…whether earned or unearned, and includes, but is not limited to…overtime payments.’” Id. at 319-320, citing O.C.G.A. § 19-6-15(f)(1)(A).
This means that if a parent receives any overtime payments, no matter how small or irregular, the court is required to include such payments in that parent’s gross income when setting a child support obligation.
In the Evans case, however, the Georgia Supreme Court also noted that the child support guidelines provide the lower courts with discretion to average such overtime payments over a reasonable period of time. This discretion is intended to avoid an inequitable outcome that could otherwise result when a parent periodically receives substantial amounts of sporadic overtime pay.
As stated by the Georgia Supreme Court in Evans v. Evans, the lower “…court’s concerns regarding the uncertainty of [a parent]’s overtime payments are addressed by O.C.G.A. § 19-6-15(f)(1)(D), which provides that
[v]ariable income such as…overtime pay…shall be averaged by the court…over a reasonable period of time consistent with the circumstances of the case and added to a parent’s fixed salary or wages to determine gross income. When income is received on an irregular, nonrecurring, or one-time basis, the court….may, but is not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that parent.
The application of this portion of the Georgia Child Support Guidelines lies within the discretion of the trial court judge.
A parent that receives overtime pay in Georgia must understand that any overtime pay they receive is included in their income for purposes of a child support calculation.
However, that parent must be prepared to demonstrate to the court that their overtime pay should be averaged over an appropriate period of time, such that their income will not be appear exaggerated in light of their typical earnings.