1995 National Legal Research Group, Inc.

Computation of child or spousal support generally involves a three-step process. First, the court must determine the income and expenses of the parties; second, it must determine the needs of the obligee; and finally, based on the ability of the obligor to pay and the needs of the obligee, it must enter an appropriate order for support. In the case of child support, the enactment of child support guidelines has refined the calculus further; the legislature has presumptively determined "needs" and thus the appropriate level of support based on the income and expenses of the parties.

This article will focus upon the first of these three steps: the definitions of "income" and "expenses" of the parties for purposes of support. We will first examine the various statutory definitions of these terms, and then we will examine the relevant case law. While the article focuses primarily on the definitions of income and expenses for child support, reference will also be made to alimony cases considering the issue.

This article will focus on the legal definitions of income and expenses. If the question is not whether a particular benefit constitutes income on the law, but rather whether a particular benefit was actually earned or should have been earned on the facts, the issue is one of imputed income.


Items Included in Gross Income

Each state's child support guidelines generally contain a definition of "gross income." "Gross income" is usually defined to include money received from any source. See 45 C.F.R. 303.8 (federal regulations require that state guidelines, at a minimum, take into consideration all income and earnings of the obligor). The various states have included in their definition of income the following:

These items are discussed in detail in section II of this article.

Most states have also adopted a special definition of income for the parent who has control over his or her income stream. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation includes gross receipts minus ordinary and necessary expenses required to produce such income. A discussion of "gross receipts" concludes section II, infra.

Nonmoney items may also be included in the definition of income. Most states have included in the definition of income, for both the wage earner and the self-employed, employment perquisites such as use of the company car, free housing, and reimbursed meals, where such reduce personal living expenses, and in-kind income, such as the forgiveness of a debt and the use of property at less than the customary charge. A discussion of these nonmoney items follows in section III, infra.

Items Excluded from Gross Income

In most states, "gross income" is specifically defined to excludethe following:

A discussion of these excludable items follows in section IV, infra.

Deductions from Gross Receipts: Ordinary and Necessary Business Expenses

As noted above, in the case of the self-employed parent or obligor, income constitutes gross receipts minus ordinary and necessary expenses. A discussion of ordinary and necessary expenses follows in section V, infra.

Deductions from Gross Income

Most states base their support calculation on gross income; e.g., Alabama, Arizona, Colorado, Connecticut, District of Columbia, Georgia, Guam, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Wisconsin.

In some states, support is calculated from "net income." Net-income states include California, Florida, Idaho, Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nebraska, North Dakota, Pennsylvania, South Dakota, Virgin Islands, Washington, West Virginia, and Wyoming.

In net-income states, gross income is adjusted by deducting federal, state, and local income taxes, and Social Security taxes based on allowable exemptions. Further, mandatory retirement deductions and mandatory union dues may be deducted in some states. In some states, child support payments and alimony payments arising out of different cases are also deductible from income. Finally, in some states, reasonable child-care expenses and health-care expenses attributable to the child at issue are deductible. E.g., In re Marriage of Baptist, 232 Ill. App. 3d 906, 598 N.E.2d 278 (1992) (noncustodial parent can deduct from gross income expenses paid for the benefit of the child and the other parent). Recall from Morgan, "Deviation from State Child Support Guidelines," 7 Divorce Litigation 117 (1995), that in some states, these expenses are treated as a credit against the basic award, and in other states, these expenses are treated as a deviation factor. The net income derived after the deduction of these items is the basis for the calculation of child support. A discussion of these deductibles follows in section VI, infra.


Tax Law Not Controlling

As noted above, the statutes include as "income" any source of funds available to the party, taking into consideration all possible financial sources. Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991) (all assets, both liquid and nonliquid, must be considered for purposes of alimony); Sturgeon v. Sturgeon, 849 S.W.2d 171 (Mo. Ct. App. 1993) (all resources available, not just salary, are to be considered); Rolnik v. Rolnik, 262 N.J. Super. 343, 621 A.2d 37 (App. Div. 1993) (in alimony case, court will consider all elements of income available); Rapp v. Rapp, 89 Ohio App. 3d 85, 623 N.E.2d 624 (1993) (the statutory definition of income is intended to be both broad and flexible); In re Marriage of Bucklin, 70 Wash. App. 2d 7, 855 P.2d 1197 (1993) (the failure to include all sources of income available is reversible error).

For this reason, the various states have generally held that the definition of income is not dependent on the definition of income in the federal tax laws. E.g., Mich. C.S.G. sec. IA (these sources of income are for the purpose of establishing child support and do not necessarily correspond to the sources of taxable income as set forth by the Internal Revenue Service); In re Marriage of Nimmo, 891 P.2d 1002 (Colo. 1995) (tax definitions of income are not determinative); In re Marriage of Eaton, 894 P.2d 56 (Colo. Ct. App. 1995) (tax status not determinative); In re Marriage of Jacobson, 251 Mont. 394, 825 P.2d 561 (1992) (the court is not bound by federal or state income tax returns in determining monthly income); Powell v. Swanson, 893 S.W.2d 161 (Tex. Ct. App. 1995); In re Paternity of Ashleigh N.H., 178 Wis. 2d 466, 504 N.W.2d 422 (Ct. App. 1993) (tax status of item is not determinative). But see In re Guidelines of Child Support Enforcement, 863 S.W.2d 291 (Ark. 1993) (income refers to the definition in the federal income tax laws, less proper deductions).

It is also worth noting that the fact that income would be subject to a community property claim does not shield one-half of the income from support calculations. Balfour v. Balfour, 21 Fam. L. Rep. (BNA) 1361 (Ala. Civ. App. May 5, 1995).

Salaries and Wages

Any income derived from salary and wages is income. Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993) (prison pay is income for purposes of child support). Salary and wages include tips, commissions, In re Marriage of McQueen, 492 N.W.2d 91 (Iowa Ct. App. 1992) (court should not have shirked duty to determine income derived from insurance agent's commissions); bonuses, Hammons v. Burge, 503 N.W.2d 413 (Iowa 1993) (incentive pay should be included in income where it is based on productivity); In re Marriage of Russell, 479 N.W.2d 592 (Iowa Ct. App. 1991) (husband's bonus compensation would not be included where it was speculative in nature); Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992); In re Marriage of Pettit, 493 N.W.2d 865 (Iowa Ct. App. 1992); In re Marriage of Allen, 493 N.W.2d 273 (Iowa Ct. App. 1992); profit sharing, Haverstock v. Haverstock, 599 N.E.2d 617 (Ind. Ct. App. 1992); deferred compensation, and severance pay. Ms. B. v. Mr. K., 158 Misc. 2d 817, 601 N.Y.S.2d 980 (Fam. Ct. 1993) (lump-sum buyout from employer constitutes income, as such was calculated on weekly wage). Thus, the salary paid by a corporation to its employee and deducted on the corporation's ledger as a business expense is income to the payee. In re Marriage of Hassiepen, ___ Ill. App. 3d ___, 646 N.E.2d 1348 (1995).

Overtime and Second Jobs

Briefly stated, where overtime and second jobs are regular and predictable, income derived therefrom is includable in gross income.

Income from Contractual Agreements

While income does include money received as the result of a contractual agreement, income does not include payments made pursuant to a property settlement agreement. Flach v. Flach, 256 N.J. Super. 333, 606 A.2d 1153 (Ch. Div. 1992) (where husband sold property awarded in equitable distribution decree, return on such capital would not be considered income); Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991) (for alimony, deferred payments made as part of the court's property division are not income); In re Marriage of Stenshoel, 72 Wash. App. 2d 800, 866 P.2d 635 (1993). Further, the proceeds from a life insurance contract are not considered income, but are considered return of capital. Guy v. Guy, 600 So. 2d 771 (La. Ct. App. 1992).

Investment and Interest Income

Income derived from investments is income for purposes of support. Gallegos v. Gallegos, 174 Ariz. 18, 846 P.2d 831 (Ct. App. 1992) (interest income from invested personal injury settlement is income); Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994) (the return on stock purchased with lump-sum workers' compensation award is income for support); In re Marriage of Tessmer, 21 Fam. L. Rep. (BNA) 1326 (Colo. Ct. App. Apr. 27, 1995) (interest and dividends on IRA are income); In re Marriage of Armstrong, 831 P.2d 501 (Colo. App. 1992) (income that postdecree inheritance will generate is income); In re Marriage of Benkendorf, 252 Ill. App. 3d 428, 624 N.E.2d 1241 (1993) (income from passive investments awarded as part of marital estate is income for support); In re Halbach, 506 N.W.2d 808 (Iowa Ct. App. 1993) (for purposes of alimony, wife's potential interest income from substantial inheritance would be considered); Guy v. Guy, 600 So. 2d 771 (La. Ct. App. 1991) (interest income derived from life insurance proceeds is income); Jung v. Jung, 886 S.W.2d 737 (Mo. Ct. App. 1994) (interest income from bank deposits, securities, and cash constitutes income); In re Marriage of Tappan, 856 S.W.2d 362 (Mo. Ct. App. 1993) (in alimony case, court must consider wife's investment income); Worsnop v. Worsnop, 204 A.D.2d 624, 612 N.Y.S.2d 626 (1994) (income from stock is income from an investment and thus includable in gross income for support, even though it is sporadic); Webb v. Rugg, 197 A.D.2d 777, 602 N.Y.S.2d 716 (1993) (interest on mutual funds is income); Parzynski v. Parzynski, 85 Ohio App. 3d 423, 62 N.E.2d 93 (1992) (money received as result of recourse note executed as part of investment constitutes income); Brewer v. Brewer, 869 S.W.2d 928 (Tenn. Ct. App. 1993) (income derived from investment of inherited funds is income for support). But see Lorman v. Lorman, 633 So. 2d 106 (Fla. DCA 1994) (court not required to factor in wife's interest income from lump-sum alimony award).

Payments that are the return on capital or the principal are not to be considered income, however. Leeder v. Leeder, 118 N.M. 603, 884 P.2d 494 (1994); Geiger v. Geiger, 96 Ohio App. 3d 630, 645 N.E.2d 818 (1994) (income from the sale of assets includes only profits, not the initial investment). One court has also held that capital gains realized from the sale of an asset awarded as part of the divorce settlement will not be considered income. Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162 (1992).

Retirement Pensions

Some states have held that income includes funds received pursuant to a retirement pension. In re Marriage of Kelm, 878 P.2d 34 (Colo. Ct. App. 1994); Savelle v. Savelle, 650 So. 2d 476 (Miss. 1995) (military retirement pension is income); Campitelli v. Campitelli, 65 Ohio App. 3d 307, 583 N.E.2d 1322 (1989); Diefenthaler v. Diefenthaler, 63 Ohio App. 3d 845, 580 N.E.2d 477 (1989) (for alimony purposes, retirement or pension plan must be considered); Wrona v. Wrona, 592 So. 2d 694 (Fla. DCA 1991).

In some states, courts have held that a pension cannot be treated as both a marital asset divisible on divorce and a source of income for alimony purposes. Pelot v. Pelot, 116 Wis. 2d 339, 342 N.W.2d 64 (Ct. App. 1993). Cases following the Pelot rule generally hold that pension benefits that were treated as marital property for property division are not income for support purposes until the owning spouse has received back an amount equal to the present value of the pension at the time of divorce, i.e., a return of capital. See In re Richards, 472 N.W.2d 162 (Minn. Ct. App. 1991); Innes v. Innes, 117 N.J. 496, 569 A.2d 770 (1990).

Trust and Estate Income

Income derived from trusts and interests in estates is considered income for support purposes. This includes income from a trust regardless of whether the income is actually distributed. Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995). But see Jones v. Jones, 628 So. 2d 1304 (La. Ct. App. 1993) (unearned income from estate planning done by mother's parents would be excluded; mother could not use money, and income was a tax fiction). It is error, however, to consider the interest income a party "might" earn without proof of the actual amount. Carstens v. Carstens, 867 P.2d 805 (Alaska 1994).


Annuities are considered income for support purposes. Thompson v. Merritt, 192 Mich. App. 412, 481 N.W.2d 735 (1991). But see Innes v. Innes, 117 N.J. 496, 569 A.2d 770 (1990) (annuity payments purchased with proceeds of equitable distribution award of pension benefits are not income, because they represent a return on capital awarded in the divorce).

Courts have also held that payments made pursuant to a structured settlement for a personal injury claim constitute an annuity, and are thus includable in income. For example, in Sherburne County Social Services v. Riedle, 481 N.W.2d 111 (Minn. Ct. App. 1992), the court construed its child support guidelines to specifically hold that "annuity" encompasses a personal injury structured settlement. See also In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991) (structured settlement is income, because it serves in part to replace income lost due to injury); In re Marriage of Fain, 794 P.2d 1086 (Colo. Ct. App. 1990) (structured settlement is income because the statute does not exclude it as a source of income); Cleveland v. Cleveland, 249 N.J. Super. 96, 592 A.2d 20 (App. Div. 1991) (structured settlement is income, as it is funds derived from any source); Tulloch v. Flickiner, 616 A.2d 315 (Del. 1992) (periodic payments which resulted from the settlement of a medical malpractice claim were not "income" for purposes of wage assignment, but may be subject to assignment as other "income"); Erie County Department of Social Services on Behalf of Trunfio v. LaBarge, 159 Misc. 2d 806, 606 N.Y.S.2d 520 (Fam. Ct. 1993) (personal injury award is income). But see Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994) (personal injury settlement is not income because it is not apportioned between income and capital elements).

Capital Gains

Capital gains from the sale of property are not considered income where they are irregular, i.e., a one-time sale. E.g., Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994). They are also not considered income where they result from the sale of property awarded in the divorce. In re Marriage of Maley, 186 Wis. 2d 125, 519 N.W.2d 717 (Ct. App. 1994); Matter of Marriage of Case, 19 Kan. App. 2d 883, 879 P.2d 632 (1994) (sale or liquidation of assets awarded in divorce is not income); Leeder v. Leeder, 118 N.M. 603, 884 P.2d 494 (1994).

Veterans' Benefits

Veterans' benefits are income. Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992) (veterans' benefits are includable as income, although they are not income under federal tax law); McCall v. McCall, 596 So. 2d 2 (Ala. Civ. App. 1991).

G.I. Benefits

The payments military personnel receive for living quarters are generally considered income, even though such benefits may not be taxable. E.g., Alexander v. Armstrong, 415 Pa. Super. 263, 609 A.2d 183 (1992) (serviceman's allowance for quarters and variable housing allowance are includable as income for child support, although they are not taxable); In re McGowan, 265 Ill. App. 3d 976, 638 N.E.2d 695 (1994) (housing allowance, though not subject to federal tax or garnishment, is income to soldier). Other military payments have been considered income as well. See McClure v. McClure, 98 Ohio App. 3d 27, 647 N.E.2d 832 (1994) (voluntary separation incentive pay is includable as income); Gohde v. Gohde, 181 Wis. 2d 770, 512 N.W.2d 199 (Ct. App. 1993) (lump-sum benefit received on separation from military is income for support).

National Guard and Reserve Drill Pay

National Guard pay is includable in income, where it is steady and not speculative. State ex rel. Weber v. Denniston, 498 N.W.2d 689 (Iowa 1993).

Benefits in Place of Earned Income

Any benefit received that is intended to take the place of income is to be considered income. These include any kind of disability benefit. In re Marriage of Franz, 831 P.2d 917 (Colo. Ct. App. 1992) (disability pension is income); In re Marriage of Smith, 817 P.2d 641 (Colo. Ct. App. 1991) (workers' compensation benefits can be considered income for support); In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993) (Social Security disability is income); In re Marriage of Dodds, 222 Ill. App. 3d 99, 583 N.E.2d 608 (1991) (lump-sum settlement of workers' compensation claim was net income available for support); Forbes v. Forbes, 610 N.E.2d 885 (Ind. Ct. App. 1993) (Social Security disability benefits are income); In re Marriage of Swan, 526 N.W.2d 320 (Iowa 1995) (that part of lump-sum workers' compensation award representing 126 weeks of disability is income); In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1991) (veterans' disability benefits, Social Security benefits, retirement benefits, and workers' compensation benefits are includable in income); In re Marriage of Robbins, 510 N.W.2d 844 (Iowa 1994) (father's unemployment compensation is income for support); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992) (veterans' disability, Social Security disability, workers' compensation, and retirement income are all to be considered income for support); Riley v. Riley, 82 Md. App. 400, 571 A.2d 1261 (1990) (military disability is income); In re Marriage of Sullivan, 258 Mont. 531, 853 P.2d 1194 (1993) (lump-sum workers' compensation award, as amortized over years, is income); In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991) (court must consider father's personal injury awards, including personal injury settlement, workers' compensation benefits, disability insurance benefits, and Social Security benefits); Matter of Marriage of Stringham, 124 Or. App. 626, 863 P.2d 504 (1993) (mother's disability insurance payments should be included in income); Matter of Marriage of Pieretti, 110 Or. App. 166, 822 P.2d 733 (1991) (disability benefits and Social Security benefits were to be considered as income); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) (disability pension is income); Maroney v. Maroney, 644 A.2d 827 (R.I. 1994) (disability pension is income); Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990) (military disability pension is income). Contra Rodriguez v. Rodriguez, 42 Conn. Supp. 34, 598 A.2d 671 (Super. Ct. 1991) (workers' compensation award was not includable as income, as it was not in lieu of wages but was based on loss of body part). It is error, however, for a court to "gross-up" a tax-free disability pension and thereby inflate income. Lemley v. Lemley, 102 Md. App. 266, 649 A.2d 1119 (1994).

Gifts, Grants, and Prizes

Where gifts are continuous and predictable, they may be considered income. E.g., Cummings v. Cummings, 21 Fam. L. Rep. (BNA) 1130 (Ariz. Ct. App. Dec. 15, 1994) (gifts that the mother receives from her parents are income to her, because such gifts are continuous and predictable); In re Marriage of Nimmo, 891 P.2d 1002 (Colo. 1995) (gift, if dependable, predictable, and regular, may be considered income); Petrini v. Petrini, 336 Md. 453, 648 A.2d 1016 (1994) (gifts father received from his mother, including rent-free housing, health insurance, and reimbursement for medical expenses for father's children, were income to father); Barnier v. Wells, 476 N.W.2d 795 (Minn. Ct. App. 1991) (expected gift, if regularly received from dependable source, may be considered income); Funk v. Funk, 376 Pa. Super. 76, 545 A.2d 326 (1989) (gifts from wife's mother had to be considered as financial resources available to wife). But see Koczaja v. Koczaja, 195 A.D.2d 693, 599 N.Y.S.2d 739 (1993) (court will not include in mother's income value of free housing she receives from her mother); Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (1984) (gifts not includable in income); True v. True, 615 A.2d 252 (Me. 1992) (court will not consider gifts to mother from her mother where there was no obligation to make such gifts). Where gifts are not predictable, however, they cannot be considered income. Huebscher v. Huebscher, 206 A.D.2d 295, 614 N.Y.S.2d 524 (1994) (court cannot impute to mother gifts she receives from her mother, where gifts might cease); Shively v. Shively, 635 So. 2d 1021 (Fla. DCA 1994) (cannot impute to wife income based on gift she has yet to receive).

Education grants that do not have to be repaid are income, but education loans are not income. Milligan v. Addison, 582 So. 2d 769 (Fla. DCA 1991).

Lottery winnings are considered income. County of Contra Costa v. Lemon, 205 Cal. App. 3d 683, 252 Cal. Rptr. 455 (1988); In re Marriage of Boyden, 164 Ill. App. 3d 385, 517 N.E.2d 1444 (1987); Gerrits v. Gerrits, 167 Wis. 2d 429, 482 N.W.2d 134 (Ct. App. 1992).

Income of a New Spouse or Paramour

Some states specifically allow the court to consider the income of a new spouse, e.g., California, Hawaii, Louisiana, while other states specifically prohibit such a consideration, e.g., Arizona, Minnesota, New Mexico, West Virginia.

In the absence of a statutory mandate, the courts have generally held that the income of a new spouse will not be considered unless such income is directly used to reduce the expenses of the obligor spouse. In re Marriage of Nimmo, 891 P.2d 1002 (Colo. 1995) (income of new spouse cannot be considered income to party); Pratt v. Pratt, 645 So. 2d 510 (Fla. DCA 1994) (income of new spouse relevant where it is shown that the obligor is limiting his/her own income and living off the income of the successor spouse); Leniz v. Leniz, 626 So. 2d 1066 (Fla. DCA 1993) (court cannot consider income of mother's boyfriend unless he contributes to mother's household expenses); LaForge v. LaForge, 649 So. 2d 151 (La. Ct. App. 1995); Greene v. Greene, 634 So. 2d 1286 (La. Ct. App. 1994) (court can consider new spouse's income to the extent it is used to reduce party's expenses); MacVean v. MacVean, 203 A.D.2d 661, 611 N.Y.S.2d 926 (1994) (the financial contribution of the husband's companion is not income where her contributions were used to defray the expenses of jointly owned property and did not reduce the husband's personal expenses); Matter of Marriage of Hardiman, 133 Or. App. 113, 889 P.2d 1354 (1995) (income of new spouse is not includable as income, although it may be factor in deviation); Matter of Marriage of Ainsworth, 114 Or. App. 311, 835 P.2d 928 (1992) (court cannot consider income of new spouse); McCarty v. Smith, ___ Pa. Super. ___, 655 A.2d 563 (1995); In re Paternity of Steven J.S., 183 Wis. 2d 347, 515 N.W.2d 719 (1994) (wages paid by the father to his new wife were not income to the father without evidence father was trying to bury his true income).


Generally, alimony received from a person not the obligor in the case at hand is includable as income. E.g., Hyde v. Hyde, 421 Pa. Super. 415, 618 A.2d 406 (1992) (alimony woman receives from ex-husband is income when calculating her obligation to husband who has custody). Alimony received from the current obligor is generally not considered income. E.g., Pelton v. Pelton, 617 So. 2d 714 (Fla. DCA 1992); Jeffcoat v. Jeffcoat, 102 Md. App. 301, 649 A.2d 1137 (1994); Kelly v. Kelly, 2 Neb. App. 399, 510 N.W.2d 90 (1993); Paulus v. Paulus, 95 Ohio App. 3d 612, 643 N.E.2d 165 (1994); Jopling v. Jopling, 526 N.W.2d 712 (S.D. 1995). But seeWood v. Wood, 190 W. Va. 445, 438 S.E.2d 788 (1993) (alimony received is income); Matter of Marriage of Wesley, 125 Or. App. 128, 865 P.2d 432 (1993).

Nonincome-Producing Assets

Some states allow the court to consider "nonincome-producing assets" in its determination of support. For example, New York allows consideration of nonincome-producing assets. See Rush v. Rush, 152 Misc. 2d 823, 579 N.Y.S.2d 552 (Fam. Ct. 1991) (nonincome-producing assets and ability to draw income and principal from trust may be considered). North Dakota sets forth a list of liquid and nonliquid assets which should be considered. The list includes stocks and bonds, vehicles, equity values in businesses and real estate, jewelry, antiques, and art objects.

Other Benefits

The income tax benefit derived from claiming a child as a dependent is not "income." Guillory v. Ventre, 610 So. 2d 1056 (La. Ct. App. 1992). Further, a tax refund is not to be considered "income" where it is a nonrecurring event. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

Gross Receipts of Business

Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation includes gross receipts minus ordinary and necessary expenses required to produce such income.

Thus, rental income is income. In re Marriage of Keown, 225 Ill. App. 3d 808, 587 N.E.2d 644 (1992). The income distribution from a party's family business is income, although it is not so deemed for income tax purposes. McDaniel v. McDaniel, 653 So. 2d 1076 (Fla. DCA 1995); see also Taylor v. Taylor, ___ N.C. ___, 455 S.E.2d 442 (1995) (court cannot rely solely on Subchapter S taxable income to determine income, where party received cash distributions as well).

Most courts will consider as "income" the retained earnings of a Subchapter S corporation. Some courts have, however, refused to follow this rule where the party is a minority shareholder, or where the retained earnings were for reinvestment purposes. Compare Merrill v. Merrill, 587 N.E.2d 188 (Ind. Ct. App. 1992) (retained earnings of wholly owned close corporation is income to father); King v. King, 390 Pa. Super. 226, 568 A.2d 627 (1989) (retained earnings of husband's partnership would be attributed to husband where evidence was insufficient to establish partnership's need); Boudreau v. Benitz, 827 S.W.2d 732 (Mo. Ct. App. 1992) (funds labeled as retained earnings were income to father where he had control over funds); Smith v. Smith, 197 A.D.2d 830, 602 N.Y.S.2d 963 (1993) (income for owner of Subchapter S corporation must be the corporation's gross receipts, including retained earnings, less unreimbursed employment expenses); Williams v. Williams, 74 Ohio App. 3d 838, 600 N.E.2d 739 (1991) (income for purposes of support includes retained earnings of father's corporation, of which he owns a majority of the stock); and In re Perlenfein, 316 Or. 16, 848 P.2d 604 (1993) (undistributed income of closely held corporation that is attributable to minority stockholder is income for child support) with Riepenhoff v. Riepenhoff, 64 Ohio App. 3d 135, 580 N.E.2d 846 (1990) (retained earnings held by close corporation should not be considered part of gross income, where obligor owned 47% of stock, and earnings were not available upon his request); Roberts v. Wright, 117 N.M. 294, 871 P.2d 390 (Ct. App. 1994) (mother's corporate earnings would not be considered income where mother reinvested earnings in business; reinvestment would be considered ordinary and necessary business expense required to produce income); McTurner v. McTurner, 649 So. 2d 1 (La. Ct. App. 1994) (court would exclude from income tax-free Subchapter S income); Muir v. Muir, 841 P.2d 736 (Utah Ct. App. 1992) (reinvestment to maintain business in present condition will not be considered income; reinvestment to expand business will be considered income) and Fitzgerald v. Sharum, 857 P.2d 92 (Okla. Ct. App. 1993) (court would not consider retained earnings of corporation, car payments, and payments for medical insurance and telephone as income to obligor; debts were "corporate" not personal).


Statutes generally provide that expenses paid by an employer, such as use of the company car, free housing, and reimbursed meals, are includable as income where such reduce personal living expenses. Further, in-kind income, such as the forgiveness of a debt and the use of property at less than the customary charge, constitutes income.

Expense Reimbursements

Noncash perquisites and reimbursements provided by an employer constitute income. McDaniel v. McDaniel, 653 So. 2d 1076 (Fla. DCA 1995) (employer's provision of car is income); McGinley-Ellis v. Ellis, 638 N.E.2d 1249 (Ind. 1994) (the court counted as income to the obligor money formerly paid as direct income but then used as paid perquisites); In re Marriage of Huisman, 21 Fam. L. Rep. (BNA) 1278 (Iowa Ct. App. Mar. 20, 1995) (provision of car by company is income); In re Marriage of Golay, 495 N.W.2d 123 (Iowa Ct. App. 1992) (court would disallow expense for mileage, since employer provides gas and oil); In re Marriage of Murphy, ___ Mont. ___, 885 P.2d 440 (1994) (reimbursed transportation expenses constitute income); In re Marriage of Jacobson, 251 Mont. 394, 825 P.2d 561 (1992) (corporation's payment of monthly bills ranging from $1,284 to $3,016, plus use of home, including use of corporate vehicles and payment of gasoline and food receipts, together valued at $1,000 per month, constituted income); Costanza v. Costanza, ___ A.D.2d ___, 625 N.Y.S.2d 762 (1995) (party's use of company auto, where such was for personal use, is income); Suydam v. Suydam, 203 A.D.2d 806, 610 N.Y.S.2d 976 (1994) (income includes personal expenses paid by party's own therapy practice); Heisey v. Heisey, 430 Pa. Super. 16, 633 A.2d 211 (1993) (court should have included in income perquisites paid by company such as entertainment expenses and automobile expenses); Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352 (1994) (value of use of automobile and cash from business for personal use includable as income); In re Paternity of Ashleigh N.H., 178 Wis. 2d 466, 504 N.W.2d 422 (Ct. App. 1993) (per diem received by legislator, less expenses, constitutes income). But see Graham v. Graham, 640 So. 2d 963 (Ala. Civ. App. 1994) (value of free day care mother received from her employer would not be attributed to mother as income); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992) (court would not include as income value of perquisites received by husband where there was no evidence receipt was predictable in the future). "Reimbursed expenses" do not include, however, an employer's normal expenses associated with the employment of an employee. Widman v. Widman, 619 So. 2d 632 (La. Ct. App. 1993) (income does not include the employer's payment of the employer's share of Social Security taxes, workers' compensation taxes, unemployment insurance). Obviously, where the "employer" providing the noncash benefit is the party's own business, then the noncash benefit will be disallowed as a necessary business expense. Income to the self-employed party and legitimate business expenses are opposite sides of the same coin. In re Marriage of McKamey, 522 N.W.2d 95 (Iowa Ct. App. 1995) (court will add in as income amounts taken from business for personal use but claimed as legitimate expenses). See discussion section V, infra, of ordinary and necessary business expenses disallowed by court.

In-Kind Income

Where a party is freed from paying a necessary expense by receiving the use of property at less than its ordinary cost, a party is considered to have received in-kind income. E.g., Norris v. Norris, 604 So. 2d 107 (La. Ct. App. 1992) (court would include as income value of free housing); Spilovoy v. Spilovoy, 511 N.W.2d 230 (N.D. 1994) (in-kind income contributed by the obligor's spouse included food, shelter, utilities, clothing, health care, and transportation, all of which constituted income); Sizemore v. Sizemore, 77 Ohio App. 3d 733, 603 N.E.2d 1032 (1991) (court must add in in-kind payments); Hunt v. Hunt, ___ Vt. ___, 648 A.2d 843 (1994) (in-kind payments are includable in gross income).

It is important, however, to distinguish in-kind income from merely not having to pay a necessary expense. For example, in Ogard v. Ogard, 808 P.2d 815 (Alaska 1991), the husband lived in one unit of a four-plex building he owned. The trial court imputed to him the income he could have received had he rented the unit out. In essence, the court considered as income the rent the husband would have to pay to rent the unit to himself. The appellate court disagreed, saying that as owner of the property, he should not have to pay to live there. See also Zimmerman v. Zimmerman, 169 Wis. 2d 516, 485 N.W.2d 294 (Ct. App. 1992) (court could not consider as income value of theoretical mortgage payment husband did not have to make because residence was mortgage-free).


Child Support Received for the Benefit of Other Children

Child support received for the benefit of children not at issue does not constitute income. This includes foster care per diem payments, Matter of Paternity of M.L.B., 633 N.E.2d 1028 (Ind. Ct. App. 1994) (foster care payments are not income, as they are received in a fiduciary capacity for the benefit of the other children), as well as Social Security benefits received by a child not at issue. In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992).

Means-Tested Assistance

Benefits received from means-tested public assistance programs, including Aid to Families with Dependent Children (AFDC), Supplemental Security Income (SSI), Food Stamps (FS), Section 8 housing allowance, and General Assistance grants, are generally not income. Compare Kyle v. Kyle, 582 N.E.2d 842 (Ind. Ct. App. 1991) (SSI is intended to supplement other income, and should thus not be considered); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992) (SSI and AFDC are not income); Matter of Marriage of Emerson, 18 Kan. App. 2d 277, 850 P.2d 942 (1993) (children's SSI benefits are not income); Becker v. Peppel, 493 N.W.2d 573 (Minn. Ct. App. 1992) (SSI benefits are not income); Gilbertson v. Graff, 477 N.W.2d 771 (Minn. Ct. App. 1991) (general assistance benefits are not income for purposes of determining child support); Nicholson v. Gavin, ___ A.D.2d ___, 615 N.Y.S.2d 458 (1994) (error to include SSI benefits received in the income calculation for child support) and Youngblood v. James, 883 S.W.2d 512 (Ky. Ct. App. 1994) (SSI is not income) with In re Marriage of Anderson, 522 N.W.2d 99 (Iowa Ct. App. 1994) (in alimony case, court could include SSI benefits as income).


Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation includes gross receipts "minus ordinary and necessary expenses required to produce such income." Crowley v. Crowley, 878 S.W.2d 70 (Mo. Ct. App. 1994) (party may deduct ordinary and necessary business expenses); Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993) (court should add income from rent where there is proof that rent is collectible). What constitutes ordinary and necessary expenses required to produce such income is naturally the subject of some debate.


Most support statutes state that "ordinary and necessary expenses" do not include amounts allowable by the IRS for depreciation expenses, investment tax credits, or any other "paper" expenses determined by the court to be inappropriate for determining gross income for purposes of child support. E.g., Reid v. Reid, 822 P.2d 532 (Idaho 1992) (self-employed farmer was not entitled to deduction of straight-line depreciation on farm equipment); Cox v. Cox, 580 N.E.2d 344 (Ind. Ct. App. 1991) (depreciation was not allowable deduction); Miller v. Miller, 610 So. 2d 183 (La. Ct. App. 1992) (amounts claimed on taxes for depreciation are to be included in income); In re Pedersen, 261 Mont. 284, 862 P.2d 411 (1993) (noncash deductions such as depreciation are not to be subtracted from gross receipts); Houmann v. Houmann, 499 N.W.2d 593 (N.D. 1993) (depreciation and other "expenses" not requiring actual cash expenditure should be included in income); Sizemore v. Sizemore, 77 Ohio App. 3d 733, 603 N.E.2d 1032 (1991) (court will not allow deduction for depreciation and other "non-cash" items); Powell v. Swanson, 893 S.W.2d 161 (Tex. Ct. App. 1995).

Some states, however, do allow a deduction for depreciation. Eagley v. Eagley, 849 P.2d 777 (Alaska 1993) (court would allow as ordinary and necessary expense straight-line depreciation, but would disallow accelerated component depreciation expense); In re Marriage of Gaer, 476 N.W.2d 324 (Iowa 1991) (husband, self-employed trucker, would be allowed straight-line depreciation for truck); In re Marriage of Maher, 510 N.W.2d 888 (Iowa Ct. App. 1993) (court required to depreciate farm equipment); Freking v. Freking, 479 N.W.2d 736 (Minn. Ct. App. 1992) (while court may disallow accelerated depreciation, total disregard of depreciation is reversible error); Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992) (accelerated depreciation is not deductible; court may, however, consider straight-line depreciation). But seeIn re Marriage of Starcevic, 522 N.W.2d 855 (Iowa Ct. App. 1994) (court would deny deduction for depreciation of farm equipment where farm was hobby farm/tax shelter).

Moreover, a court is entitled to consider the tax benefits a party derives from using the accelerated depreciation method in figuring federal tax liability. Klapal v. Brannon, 610 So. 2d 1167 (Ala. Civ. App. 1992).

Other Business Expenses

Support statutes generally do not allow business expenses deemed "inappropriate" for the computation of support. See In re Marriage of Eaton, 894 P.2d 56 (Colo. Ct. App. 1995) (court would not allow father a deduction for losses in excess of income from rental property where effect would be to deny support); Roberts v. Wright, ___ N.M. ___, 871 P.2d 390 (Ct. App. 1994) (in the case of the self-employed parent, business expenses must not only be ordinary and necessary, but also irrelevant to support); Sizemore v. Sizemore, 77 Ohio App. 3d 733, 603 N.E.2d 1032 (1991) (court will carefully examine expenses of self-employed); Fettig v. Kailes, 124 Or. App. 455, 863 P.2d 476 (1993) (court will carefully scrutinize claimed business expenses of self-employed parent); McGinley-Ellis v. Ellis, 638 N.E.2d 1249 (Ind. 1994) (where party is self-employed, court is required to determine gross receipts minus legitimate expenses; it is error to rely on party's W-2 form, since salary drawn is controllable). For example, Michigan specifically disallows as reasonable expenses depreciation, office in home, expenses for promotional entertainment, travel expenses, and car expenses.

A business expense is appropriate where it is used to produce income. Nelson v. Nelson, 651 So. 2d 1252 (Fla. DCA 1995) (court would allow deduction for cost to take medical board exams); Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992) (husband may deduct ordinary and reasonable expenses of property repair, management, taxes, insurance, and mortgage interest for rental property); Widman v. Widman, 629 So. 2d 632 (La. Ct. App. 1993) (it is error to include rental income without allowing for deduction of expenses related to that income); In re Marriage of Fesolowitz, 258 Mont. 380, 852 P.2d 658 (1993) (husband may deduct losses on condo and apartment house owned as legitimate business expense); Roberts v. Wright, ___ N.M. ___, 871 P.2d 390 (Ct. App. 1994) (mother's corporate earnings would not be considered income where mother reinvested earnings in business; reinvestment would be considered ordinary and necessary business expense required to produce income); Faber v. Faber, 206 A.D.2d 644, 614 N.Y.S.2d 771 (1994) (unreimbursed expenses properly documented were deductible from income); Kennedy v. Kennedy, 107 N.C. App. 695, 421 S.E.2d 795 (1992) (reasonable and necessary expenses of a musician include utilities, phone, truck, lease, insurance, home and truck maintenance, and personal property taxes); Baus v. Baus, 72 Ohio App. 3d 781, 596 N.E.2d 509 (1991) (equipment costs and leasehold improvements of dentist are deductible, as are contributions to employees' retirement accounts). But see Harrison v. Harrison, 573 So. 2d 1018 (Fla. DCA 1991) (deduction not allowed for disability and overhead insurance).

Obviously, business expenses are not "reasonable" when they are nothing more than the payment of personal expenses of the majority shareholder. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992) (party could not deduct expenses for own meals and clothing as purported business expenses); Cox v. Cox, 580 N.E.2d 344 (Ind. Ct. App. 1991); Boudreau v. Benitz, 827 S.W.2d 732 (Mo. Ct. App. 1992) (court was justified in piercing corporate veil and including in income expenses paid by husband's corporation on behalf of husband, where expenses were entirely personal in nature); see also In re Marriage of Heil, 233 Ill. App. 3d 888, 599 N.E.2d 168 (1992) (court would not allow deductions for mortgage and insurance on hunting lodge where husband used lodge for own benefit 50% of time); Zakrowski v. Zakrowski, 594 N.E.2d 821 (Ind. Ct. App. 1992) (expenditures on business equipment by husband broker benefited husband personally rather than benefited business, and were thus not deductible business expenses); Jensen v. Bolucut, 892 P.2d 1053 (Utah Ct. App. 1995) (could would disallow deduction for small business taxes and student loan).

There is some disagreement as to whether payment of business debt constitutes a legitimate business expense or whether it is a personal debt in that its payment will increase the net worth of the payor. In one case, the court held that the payments made by a solely owned corporation on the principal of loans were not "necessary" expenses required to produce income. Bingham v. Bingham, 872 P.2d 1065 (Utah Ct. App. 1994). Some courts have taken the position that payment on principal adds to the net worth of the payor, and should thus not be an allowable deduction. Zakrowski v. Zakrowski, 594 N.E.2d 821 (Ind. Ct. App. 1992); Merrill v. Merrill, 587 N.E.2d 188 (Ind. Ct. App. 1992). On the other hand, in Woods v. Woods, 95 Ohio App. 3d 222, 642 N.E.2d 45 (1994), the court held that the monthly loan payment for a rig made by a self-employed trucker was deductible. Accord Cox v. Cox, 580 N.E.2d 344 (Ind. Ct. App. 1991) (purchase of farming equipment was legitimate business expense and thus deductible from income); Mayo v. Crazovich, 621 So. 2d 120 (La. Ct. App. 1993) (payments on loan to begin poultry business were ordinary and necessary expense); Kamm v. Kamm, 67 Ohio St. 3d 174, 616 N.E.2d 900 (1993) (the acquisition of a capital asset is deductible against gross receipts, provided it is an ordinary and necessary expense).

The court in Jurado v. Jurado, ___ N.M. ___, 892 P.2d 969 (Ct. App. 1995), drew a distinction between a business debt that "maintains" the business, which is deductible, as opposed to a business debt that is for business "growth," which is not deductible. This distinction should be adopted by other courts as well. See alsoMuir v. Muir, 841 P.2d 736 (Utah Ct. App. 1992) (reinvestment of corporate earnings to maintain business in present condition will not be considered income; reinvestment to expand business will be considered income).


Some states base support orders on "net income" as opposed to "gross income." This basically means that deductions may be made from gross income for certain enumerated items. See Childers v. Childers, 630 So. 2d 108 (Fla. DCA 1994) (it is error for court to compute child support based on gross, rather than net, income).

Income and Social Security Taxes

Some states allow a deduction for income taxes. E.g., Manno v. Manno, 196 A.D.2d 488, 600 N.Y.S.2d 968 (1993) (court will subtract FICA taxes from gross income); Glazer v. Glazer, 190 A.D.2d 951, 593 N.Y.S.2d 905 (1993) (court will subtract FICA taxes from gross income). The deduction does not apply to property taxes. Manno v. Manno, 196 A.D.2d 488, 600 N.Y.S.2d 968 (1993) (court may not deduct real estate taxes and mortgage deduction).

The states that allow this deduction have generally held, however, that this deduction is limited to the maximum amount allowable by reference to the federal tax tables, not the amount voluntarily withheld from income. Hallock v. Mickels, 507 N.W.2d 541 (N.D. 1993). The deduction is also limited to the amount actually paid, not a potential liability. In re Marriage of McQuoid, 9 Cal. App. 4th 1353, 12 Cal. Rptr. 2d 737 (1991); see also Martone v. Martone, 28 Conn. App. 208, 611 A.2d 896 (1992) (obligor cannot deduct federal tax liability where neither party had ever paid federal taxes nor had any intention of paying taxes in the future).

Mandatory Union Dues and Mandatory Retirement Plans

Some states allow a deduction for mandatory wage withholdings. E.g., Carnes v. Dressen, 215 Ill. App. 3d 166, 574 N.E.2d 845 (1991) (net income is to be derived by deducting payments for support pursuant to a prior obligation, state and federal taxes, union dues, and Social Security taxes). Where a party must make a contribution to the union or to a pension/retirement fund, such a mandatory contribution is excludable from income. Campbell v. Campbell, 635 So. 2d 44 (Fla. DCA 1994) (contributions made by husband's employer to husband's profit-sharing plan were not income to husband; husband had no stock in company, contributions were not voluntary, and husband had no control over contributions); In re Marriage of Mull, 61 Wash. App. 2d 715, 812 P.2d 125 (1991) (court would not impute payments into pension plan where such payments were mandatory after election, and payments did not compromise needs of children); cf. Powell v. Powell, 645 A.2d 622 (Me. 1994) (union dues are not deductible from income where party is not self-employed).

Where, however, the contribution is voluntary, such contribution is considered income. Nevarez v. Nevarez, 626 A.2d 867 (D.C. 1993) (voluntary accumulation of debt to creditors cannot be considered deductible expense); Nelson v. Nelson, 651 So. 2d 1252 (Fla. DCA 1995) (voluntary contribution to pension plan not deductible); In re Marriage of Burris, 263 Ill. App. 3d 495, 636 N.E.2d 71 (1994) (payment of $35 per month for life insurance is not an allowable deduction from income); State ex rel. Nielsen v. Nielsen, 521 N.W.2d 735 (Iowa 1994) (party cannot claim as deductions to income payments for voluntary savings, indebtedness, current child support, and IRS settlement); McCarty v. McCarty, 192 Mich. App. 279, 480 N.W.2d 617 (1991) (voluntary contribution to retirement account is income); In re Marriage of Hunt, 264 Mont. 159, 870 P.2d 720 (1994) (improper to deduct from wife's income her contribution to retirement plan); Lebrato v. Lebrato, 3 Neb. App. 1505, 529 N.W.2d 90 (1995) (husband cannot deduct amounts paid into voluntary retirement plan); Marsh v. Fieramusca, 150 Misc. 2d 776, 569 N.Y.S.2d 1012 (Fam. Ct. 1991) (the full amount of husband's voluntary contribution to his 401(k) plan was imputed to him as income, because he had complete control over whether he could realize this income); Hallock v. Mickels, 507 N.W.2d 541 (N.D. 1993) (will not deduct from income discretionary retirement contribution); Shipley v. Shipley, 509 N.W.2d 49 (N.D. 1993) (contributions by employer to husband's pension plan were income); Parzynski v. Parzynski, 85 Ohio App. 3d 423, 620 N.E.2d 93 (1992) (husband's pension contribution was income to him, where he owned 50% of his business and could thus control his contribution).

Voluntary Debt Reduction

Just as a voluntary contribution to a retirement plan or savings plan is not deductible, so, too, is the voluntary assumption of debt or obligation not deductible from income. Such debts and obligations include credit union payments, loan repayments, charitable deductions, and savings or thrift plans. E.g., Wood v. Wood, 190 W. Va. 445, 438 S.E.2d 788 (1993) (voluntary payment to credit union to pay loan is not deductible from income); Butler v. Brewster, 629 So. 2d 1092 (Fla. DCA 1994) (court would not allow deductions for contributions to profit-sharing plan, repayment of loan, or credit union savings plan); Mulford v. Sullivan, 560 So. 2d 1364 (Fla. 1990) (court would not allow deduction for voluntary contribution to 401(k) plan); Lehman v. Lehman, 431 Pa. Super. 450, 636 A.2d 1172 (1994) (monthly payments required for the purchase of a business were not deductible from income). Contra Ellis v. Council, 546 So. 2d 801 (Fla. DCA 1989) (court would allow deduction for repayment of credit union debt and garnishment from wages for other debt).

In Ogard v. Ogard, 808 P.2d 815 (Alaska 1991), the court envisioned a circumstance where voluntary debt reduction could be considered income. Specifically, the court held that where an obligor reduces his or her income by liquidating income-producing assets and applies the proceeds to the mortgage on his or her dwelling, the reduction of the mortgage, and thus the lessening of the "rental obligation," can be considered income. In such a case, the obligor spouse is in actual receipt of funds that he or she has then used for purposes other than support. See also In re Marriage of Kirk, 217 Cal. App. 3d 597, 366 Cal. Rptr. 76 (1990) (voluntary diversion of income to repay a debt was voluntary reduction of income; amount of diversion would be imputed).


Child support guidelines have clearly refocused the emphasis from the needs of the children to the income of their parents. J. Atkinson, "The Child's Needs Versus the Parent's Ability to Pay," 12 Fam. Advoc. 26 (Winter 1990); L. Gold-Biken, Divorce Practice Handbook 10.09 at 271 (1994). It is thus of paramount importance for the practitioner to pinpoint all sources of income and deductions to income in order to present the strongest case possible.

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