Child Support and Second Job

second-job-2Frequently I will have a client who is struggling to pay their bills as well as child support. To help make ends meet, they will take up a second job. Their concern is whether the income from the second job will be included in the child support calculations. If they work more only to end up owing more, they’d rather stay home.

If you have had the second job or have worked 60 hour weeks for the past ten years, that additional income will most likely be included in the child support guidelines because it is your actual income.

On the other hand, if you pick up a part-time job after the child support calculations have been done or after the relationship has broken up, I don’t think it can be included in the guidelines. My reasoning is as follows:

Maryland case law is silent on the exact question of whether income from a second job can be included in child support calculations. Both Brown and Tracey v. Tracey, 328 Md 380 (1992) approach the issue but stop shy of answering the question. Tracey dealt with the similar issue of whether a Wife’s second job at McDonalds should be included in the calculation for determining alimony. The Court concluded that the “alimony statute does not consign [Plaintiff] to an existence of unremitting toil.” Id.

In Tracey, the Court sought guidance from other jurisdictions and cited the Nebraskan case of Stuczynski v. Stuczynski, 238 Neb. 368 (1991) which dealt precisely with the issue of including a parent’s second job for the purposes of determining the child support amount. In the Stuczynski case, the father worked a full-time job 40 hours a week and had a second job working 30 hours a week. The father did not want to work the second job and asked the court to determine his child support obligation based solely on his full-time employment. The court agreed, stating “[a party] with a full-time job, which job also furnishes substantial overtime, may not be required to work at a second job to furnish child support. If the earnings in such a second job are included in the calculation of the amount of child support due from the worker, the next result is a court requirement that the worker continue indefinitely at these two jobs to satisfy the court order.” Id. at 372. The Nebraskan child support statute appears to operate similarly to the Maryland child support statute in that it creates a rebuttable presumption that the child support guidelines will be correct. The court stated that the more common problem is a parent who does not work enough and therefore fails to provide for the children. In cases where the parent works additional jobs, it would lead to a unjust and inequitable result if that second job income were included in the child support computations. “No worker should be required to work at such a rate for long periods of time, and it is not fair and equitable to require him to do so.” Id. at 373.

A Louisiana court has refused to order a parent to take on a second job in order to afford higher child support payments in Naquin v. Naquin, 405 So.2d 1171 (La. App. 1981). That court stated “[w]e know of no jurisprudence requiring the party obligated to furnish child support to undertake two separate employments.” The court further noted that the parent already had one full-time job.

The plain language of the child support statute defining income as “actual income of parent, if parent is employed to full capacity” indicates the legislative intent to only consider the primary job of a parent. The closest case on point in Maryland states that a party “is not confined to a life of unrelenting toil.” Authorities from other jurisdictions have found that the inclusion of income from second jobs is not required.