When an obligor has an hourly wage and commissions, should the commissions be averaged over three years to come up with the gross income for a child support obligation? What happens when the opposing counsel insists on using income which includes the obligor’s best commission year to date?
Averaging is intended for jobs that fluctuate. If the client’s income is only going one way, pay attention to the trend. If there is no trend, averaging makes the most sense. If the client’s best commission year to date was an anomaly, then look to different years for the average.
The judge will consider the best evidence. This may include looking at the obligor’s best commission year, the years following the best commission year, and an average income for the last three or five years.
In practice, a judge can choose to use the best year of commissions to set child support. A judge can refuse to use an average of three years. Even upon appeal of this decision the judge can rubber-stamp the use of the highest commission year. This may not be the way all judges decide these matters. Most attorneys agree that averaging is the most appropriate way to calculate child support in cases that involve wage commissions.