In Georgia, income that goes up and down still counts toward child support; the court averages it rather than leaving it out.
What the Statute Says
Under OCGA 19-6-15(f)(1)(D), “[v]ariable income such as commissions, bonuses, overtime pay, military bonuses, and dividends shall be averaged by the court or the jury 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.” Income that arrives “on an irregular, nonrecurring, or one-time basis” is treated more flexibly: 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.”
Overtime Cannot Be Ignored
In Evans v. Evans, 285 Ga. 319 (2009), the trial court found the father earned over $5,000 a month but refused to use that figure because it included “a significant amount of overtime that is not guaranteed.” The Georgia Supreme Court reversed. Overtime is on the statute’s list of gross income, and “[t]he trial court’s concerns regarding the uncertainty of appellee’s overtime payments are addressed by” the averaging rule.
Bonuses and Stock Awards
In Nelson v. McKenzie, 364 Ga. App. 533 (2022), a father received annual equity grants under his employer’s long-term incentive plan, and the trial court left them out because none was available to withdraw at the time of the hearing. The Court of Appeals reversed: “the requirement is to consider all income, even variable income.”
What Is Not Variable Income
In Simmons v. Simmons, 288 Ga. 670 (2011), the husband argued that his K-1 income from a closely held company had to be averaged over a longer period than three years. The Supreme Court held that K-1 income is self-employment income, not variable income, so the averaging rule did not apply, and a three-year average was within the trial court’s discretion.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!