Ask A Lawyer: Is Child Support Calculated Using Potential Income?

Question:

I am a substitute teacher. I do not get called for work everyday. I was paying $305 monthly child support as part of an order for protection.

On Jan. 6, 2009, my wife had the order extended. As part of the modification of the order, she asked that my child support amount be increased. The judge asked me what I made per week. Not thinking, I said $400 per week (as I have sometimes worked 4 days at $100 per day). I also have a second job that brings in $140 per week. The judge then upped my child support payment to $1000 per month.

He assumed I made $400 per week from substitute teaching week in and week out. He did not take into consideration the fact that I do not get work everyday, nor that there are many school holidays where there is no work.  Three months of summer will be here soon and there will be no work as well, and I do not continue to get paid when there are breaks.  Do you have any pointers for me?

 

Answer:

I would definitely revisit the support issue.  Based on the information you provided your support is more than 50% of your gross monthly income (making $400 a week).  Every state calculates support differently, but normally your support will not exceed 50% of your income.  If the court only imputed $400 a week for you, that is unlikely to change.  Although you may not always make $400 a week, you have the potential to do so.  Court’s can impute income for child support purposes based on your earning potential not just your actual earnings.  I would  do some investigation as to how the support was calculated.

 

 

Clarissa Finnell is an Associate Attorney in the Indianapolis office of Cordell & Cordell, P.C. She is a member of the Indianapolis Bar Association and has been licensed in Indiana since 1997.  Read more about Clarissa Finnell.

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