(1) Inclusion to gross income.
(A) Attributable income. Gross income of each parent shall be determined in the process of setting the presumptive amount of child support and shall include all income from any source, before deductions for taxes and other deductions such as preexisting orders for child support and credits for other qualified children, whether earned or unearned, and includes, but is not limited to, the following:
(ii) Commissions, fees, and tips;
(iii) Income from self-employment;
(v) Overtime payments;
(vi) Severance pay;
(vii) Recurring income from pensions or retirement plans including, but not limited to, United States Department of Veterans Affairs, Railroad Retirement Board, Keoghs, and individual retirement accounts;
(viii) Interest income;
(ix) Dividend income;
(x) Trust income;
(xi) Income from annuities;
(xii) Capital gains;
(xiii) Disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the federal Social Security Act;
(xiv) Disability benefits that are received pursuant to the federal Veterans’ Benefits Act of 2010, 38 U.S.C. Section 101, et seq.;
(xv) Workers’ compensation benefits, whether temporary or permanent;
(xvi) Unemployment insurance benefits;
(xvii) Judgments recovered for personal injuries and awards from other civil actions;
(xviii) Gifts that consist of cash or other liquid instruments, or which can be converted to cash;
(xx) Lottery winnings;
(xxi) Alimony or maintenance received from persons other than parties to the proceeding before the court;
(xxii) Assets which are used for the support of the family; and
(xxiii) Other income.
(B) Self-employment income. Income from self-employment includes income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations. Ordinary and reasonable expenses of self employment or business operations necessary to produce income do not include:
(i) Excessive promotional, travel, vehicle, or personal living expenses, depreciation on equipment, or costs of operation of home offices; or
(ii) Amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court or the jury to be inappropriate for determining gross income.
In general, income and expenses from self-employment or operation of a business should be carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.
(C) Fringe benefits. Fringe benefits for inclusion as income or “in kind” remuneration received by a parent in the course of employment, or operation of a trade or business, shall be counted as income if the benefits significantly reduce personal living expenses. Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board. Fringe benefits shall not include employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including, but not limited to, employer paid portions of health insurance premiums or employer contributions to a retirement or pension plan.
(D) Variable income. Variable 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. When income is received on an irregular, nonrecurring, or one-time basis, the court or the jury 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.
(E) Military compensation and allowances. Income for a parent who is an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the merchant marine of the United States, the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, the National Guard, or the Air National Guard shall include:
(i) Base pay;
(ii) Drill pay;
(iii) Basic allowance for subsistence, whether paid directly to the parent or received in-kind; and
(iv) Basic allowance for housing, whether paid directly to the parent or received inkind, determined at the parent’s pay grade at the without dependent rate, but shall include only so much of the allowance that is not attributable to area variable housing costs. Except as determined by the court or the jury, special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent’s assignment to a high cost of living location shall not be considered income for the purpose of determining gross income.
(2) Exclusions from gross income. Excluded from gross income are the following:
(A) Child support payments received by either parent for the benefit of a child of another relationship;
(B) Benefits received from means-tested public assistance programs such as, but not limited to:
(i) PeachCare for Kids Program, Temporary Assistance for Needy Families Program, or similar programs in other states or territories under Title IV-A of the federal Social Security Act;
(ii) Food stamps or the value of food assistance provided by way of electronic benefits transfer procedures by the Department of Human Services;
(iii) Supplemental security income received under Title XVI of the federal Social Security Act;
(iv) Benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers; and
(v) Low-income heating and energy assistance program payments;
(C) Foster care payments paid by the Department of Human Services or a licensed childplacing agency for providing foster care to a foster child in the custody of the Department of Human Services;
(D) A nonparent custodian’s gross income; and
(E) Benefits received under Title IV-B or IV-E of the federal Social Security Act and state funding associated therewith for adoption assistance.
(3) Social Security benefits.
(A) Benefits received under Title II of the federal Social Security Act by a child on the obligor’s account shall be counted as child support payments and shall be applied against the final child support amount to be paid by the obligor for the child.
(B) After calculating the obligor’s monthly gross income, including the countable social security benefits as specified in division (1)(A)(xiii) of this subsection, and after calculating the amount of child support, if the presumptive amount of child support, as increased or decreased by deviations, is greater than the social security benefits paid on behalf of the child on the obligor’s account, the obligor shall be required to pay the amount exceeding the social security benefit as part of the final order in the case.
(C) After calculating the obligor’s monthly gross income, including the countable social security benefits as specified in division (1)(A)(xiii) of this subsection, and after calculating the amount of child support, if the presumptive amount of child support, as increased or decreased by deviations, is equal to or less than the social security benefits paid to the nonparent custodian or custodial parent on behalf of the child on the obligor’s account, the child support responsibility of that parent shall have been met and no further child support shall be paid.
(D) Any benefit amounts under Title II of the federal Social Security Act as determined by the Social Security Administration sent to the nonparent custodian or custodial parent by the Social Security Administration for the child’s benefit which are greater than the final child support amount shall be retained by the nonparent custodian or custodial parent for the child’s benefit and shall not be used as a reason for decreasing the final child support amount or reducing arrearages.
(4) Reliable evidence of income.
(A) Imputed income. When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent’s income or income potential, gross income for the current year may be imputed. When imputing income, the court or the jury shall take into account the specific circumstances of the parent to the extent known, including such factors as the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case. If a parent is incarcerated, the court or the jury shall not assume an ability for earning capacity based upon pre-incarceration wages or other employment related income, but income may be imputed based upon the actual income and assets available to such incarcerated parent.
(B) Modification. When cases with established orders are reviewed for modification and a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of such parent’s income or income potential, the court or the jury may impute income as set forth in subparagraph (A) of this paragraph, or may increase the child support of the parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of such parent’s gross income for each year since the final order was entered or last modified and shall calculate the basic child support obligation using the increased amount as such parent’s gross income.
(C) Rehearing. If income is imputed pursuant to subparagraph (A) of this paragraph, the party believing the income of the other party is higher than the amount imputed may provide within 90 days, upon motion to the court, evidence necessary to determine the appropriate amount of child support based upon reliable evidence. A hearing shall be scheduled after the motion is filed. The court may increase, decrease, or leave unchanged the amount of current child support from the date of filing of either parent’s initial filing or motion for reconsideration. While the motion for reconsideration is pending, the obligor shall be responsible for the amount of child support originally ordered. Arrearages entered in the original child support order based upon imputed income shall not be forgiven. When there is reliable evidence to support a motion for reconsideration of the amount of income imputed, the party seeking reconsideration shall not be required to prove the existence of grounds for modification of an order pursuant to subsection (k) of this Code section.
(D) Willful or voluntary unemployment or underemployment. In determining whether a parent is willfully or voluntarily unemployed or underemployed, the court or the jury shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child. A determination of willful or voluntary unemployment or underemployment shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a parent’s income. A determination of willful or voluntary unemployment or underemployment shall not be made when an individual’s incarceration prevents employment. In determining willful or voluntary unemployment or underemployment, the court or the jury may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income. Specific factors for the court or the jury to consider when determining willful or voluntary unemployment or underemployment include, but are not limited to:
(i) The parent’s past and present employment;
(ii) The parent’s education and training;
(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent’s responsibility to support his or her child and, to this end, whether the training or education may ultimately benefit the child in the case immediately under consideration by increasing the parent’s level of support for that child in the future;
(iv) A parent’s ownership of valuable assets and resources, such as an expensive
home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent;
(v) The parent’s own health and ability to work outside the home; and
(vi) The parent’s role as caretaker of a child of that parent, a disabled or seriously ill child of that parent, or a disabled or seriously ill adult child of that parent, or any other disabled or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent’s ability to work outside the home, and the need of that parent to continue in the role of caretaker in the future. When considering the income potential of a parent whose work experience is limited due to the caretaker role of that parent, the court or the jury shall consider the following factors:
(I) Whether the parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker;
(II) The length of time the parent staying at home has remained out of the work force for this purpose;
(III) The parent’s education, training, and ability to work; and
(IV) Whether the parent is caring for a child who is four years of age or younger. If the court or the jury determines that a parent is willfully or voluntarily unemployed or underemployed, child support shall be calculated based on a determination of earning capacity, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the parent as provided for in subparagraph (f)(4)(A) of this Code section.
A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.
(5) Adjustments to gross income.
(A) Self-employment. One-half of the self-employment and Medicare taxes shall be calculated as follows:
(i) Six and two-tenths percent of self-employment income up to the maximum amount to which federal old age, survivors, and disability insurance (OASDI) applies; plus
(ii) One and forty-five one-hundredths of a percent of self-employment income for Medicare and this amount shall be deducted from a self-employed parent’s monthly gross income.
(B) Preexisting orders. An adjustment to the parent’s monthly gross income shall be made on the Child Support Schedule B — Adjusted Income for current preexisting orders for a period of not less than 12 months immediately prior to the date of the hearing or such period that an order has been in effect if less than 12 months prior to the date of the hearing before the court to set, modify, or enforce child support.
(i) In calculating the adjustment for preexisting orders, the court shall include only those preexisting orders meeting the criteria set forth in subparagraph (a)(18)(B) of this Code section;
(ii) The priority for preexisting orders shall be determined by the date and time of filing with the clerk of court of the initial order in each case. Subsequent modifications of the initial support order shall not affect the priority position established by the date and time of the initial order. In any modification proceeding, the court rendering the decision shall make a specific finding of the date, and time if known, of the initial order of the case;
(iii) Adjustments shall be allowed for current preexisting support only to the extent that the payments are actually being paid as evidenced by documentation including, but not limited to, payment history from a court clerk, the child support services’ computer data base, the child support payment history, or canceled checks or other written proof of payments paid directly to the other parent. The maximum credit allowed for a preexisting order is an average of the amount of current support actually paid under the preexisting order over the past 12 months prior to the hearing date;
(iv) All preexisting orders shall be entered on the Child Support Schedule B — Adjusted Income for the purpose of calculating the total amount of the credit to be included on the child support worksheet; and
(v) Payments being made by a parent on any arrearages shall not be considered payments on preexisting orders or subsequent orders and shall not be used as a basis for reducing gross income.
(C) Theoretical child support orders. In addition to the adjustments to monthly gross income for self-employment taxes provided in subparagraph (A) of this paragraph and for preexisting orders provided in subparagraph (B) of this paragraph, credits for either parent’s other qualified child living in the parent’s home for whom the parent owes a legal duty of support may be considered by the court for the purpose of reducing the parent’s gross income. To consider a parent’s other qualified children for determining the theoretical child support order, a parent shall present documentary evidence of the parent-child relationship to the court. Adjustments to income pursuant to this subparagraph may be considered in such circumstances in which the failure to consider a qualified child would cause substantial hardship to the parent; provided, however, that such consideration of an adjustment shall be based upon the best interest of the child for whom child support is being awarded. If the court, in its discretion, decides to apply the qualified child adjustment, the basic child support obligation of the parent for the number of other qualified children living with such parent shall be determined based upon that parent’s monthly gross income. Except for self-employment taxes paid, no other amounts shall be subtracted from the parent’s monthly gross income when calculating a theoretical child support order under this subparagraph. The basic child support obligation for such parent shall be multiplied by 75 percent and the resulting amount shall be subtracted from such parent’s monthly gross income and entered on the Child Support Schedule B — Adjusted Income.
(D) Multiple family situations. In multiple family situations, the priority of adjustments to a parent’s monthly gross income shall be calculated in the following order:
(i) Preexisting orders according to the date and time of the initial order as set forth in subparagraph (B) of this paragraph; and
(ii) Application of any credit for a parent’s other qualified children using the procedure set forth in subparagraph (C) of this paragraph.