How are Side Jobs and Overtime Considered for Purposes of Alimony?
Back in 1998 the Utah Court of Appeals decided a case, Griffith v. Griffith, 959 P.2d 1015 (1998), which sheds a lot of light on how a spouse’s side jobs, annual bonuses, and the use of a company car. The wife in that case appealed after the trial court refused to consider those three things in husband’s income for purposes of alimony.
The basic law regarding income above a spouse’s normal 40 hour work week is that it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source overtime, second job, self-employment, etc., as well as unearned income. Griffith, 959 P.2d at 1017-1019.
In Griffith, husband worked full time for his father’s company, C&G. He also supplemented his income by doing C&G related side-jobs. Most of the money he earned through his side jobs went to renovate the marital home. By the time of trial the husband was no longer performing the side jobs. Thus, the court decided not consider the husband’s side jobs in his income for the following reasons: (1) the couple finished renovating their home shortly before the separation and no longer needed the side-job income; (2) husband’s father had accepted a local government position, and husband was now performing C & G work that had once been done by his father; and (3) husband’s older brother, also a C & G employee, had been diagnosed with leukemia, and husband had taken over many of his duties. The court based this refusal on the following specific findings of fact: 1) husband had stopped performing the side-jobs before the couple separated and was unlikely to perform them again in the future; 2) husband worked fifty hours a week at a demanding job, and thus was not underemployed; 3) C & G appropriately compensated husband for full time work; and 4) husband’s extra work was done to keep the family business viable and thus was not evidence of voluntary underemployment. The court of appeals agreed.
In Griffith the trial court took an average of the last five years of the husband’s income to determine an income amount for alimony purposes. A couple of those five years did not include a bonus and some of them did. The wife argued that the court should not have considered the years that did not include a bonus. The court of appeals disagreed and refused to overturn the trial court’s decision.
Courts are given broad discretion to determine income for purposes of alimony, but income is generally supposed to be determined as of the time of trial and income should not be imputed to a spouse unless the spouse agrees or there is a hearing in which evidence is presented and a court is able to make a finding from that hearing on how much income should be imputed.
Thus, simply put, in a divorce case involving issues of alimony, all forms of income can be considered if there is evidence to support it. It all comes down to the facts that are presented, which is why it is so important to have an experienced divorce attorney representing you.