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H. B. 2376
(By Delegate Schoen)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-1-228 of the Code of West Virginia,
1931, as amended, relating to the definition of gross income
for purposes of determining child support; providing that
certain employment-related expenses are excluded from gross
income.
Be it enacted by the Legislature of West Virginia:
That §48-1-228 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-228. Gross income defined.
(a) "Gross income" means all earned and unearned income. The
word "income" means gross income unless the word is otherwise
qualified or unless a different meaning clearly appears from the
context. When determining whether an income source should be
included in the child support calculation, the court shall consider the income source if it would have been available to pay
child-rearing expenses had the family remained intact or, in cases
involving a nonmarital birth, if a household had been formed.
(b) "Gross income" includes, but is not limited to, the
following:
(1) Earnings in the form of salaries, wages, commissions,
fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract, an
annuity, social security benefits, unemployment compensation,
supplemental employment benefits, workers' compensation benefits
and state lottery winnings and prizes;
(3) Interest, dividends or royalties;
(4) In-kind payments such as business expense accounts,
business credit accounts and tangible property such as automobiles
and meals, to the extent that they provide the parent with property
or services he or she would otherwise have to provide: Provided,
That reimbursement of actual expenses incurred and documented shall
is not be included as gross income;
(5) Attributed income of the parent, calculated in accordance
with the provisions of section 1-205 two hundred five of this
article;
(6) An amount equal to fifty percent of the average
compensation paid for personal services as overtime compensation
during the preceding thirty-six months: Provided, That overtime compensation may be excluded from gross income if the parent with
the overtime income demonstrates to the court that the overtime
work is voluntarily performed and that he or she did not have a
previous pattern of working overtime hours prior to separation or
the birth of a nonmarital child;
(7) Income from self-employment or the operation of a
business, minus ordinary and necessary expenses which are not
reimbursable, and which are lawfully deductible in computing
taxable income under applicable income tax laws, and minus FICA and
medicare contributions made in excess of the amount that would be
paid on an equal amount of income if the parent was not
self-employed: Provided, That the amount of monthly income to be
included in gross income shall be determined by averaging the
income from such employment during the previous thirty-six-month
period or during a period beginning with the month in which the
parent first received such the income, whichever period is shorter;
(8) Income from seasonal employment or other sporadic sources:
Provided, That the amount of monthly income to be included in gross
income shall be determined by averaging the income from seasonal
employment or other sporadic sources received during the previous
thirty-six-month period or during a period beginning with the month
in which the parent first received such compensation, whichever
period is shorter; and
(9) Spousal support and separate maintenance receipts.
(c) Depending on the circumstances of the particular case, the
court may also include severance pay, capital gains and net
gambling, gifts or prizes as gross income.
(d) "Gross income" does not include:
(1) Income received by other household members such as a new
spouse;
(2) Child support received for the children of another
relationship;
(3) Means-tested assistance such as temporary assistance for
needy families, supplemental security income and food stamps; and
(4) A child's income unless the court determines that the
child's income substantially reduces the family's living expenses.
(5) Dues, fees and expenses that are necessary to maintain
membership in an organization, professional licensure or
occupational or professional certification, excluding dues, fees or
expenses used for political purposes, that are required for
employment, including, but not limited to:
(A) Union membership dues, assessments or fees;
(B) Fees for enrollment or training and certification in
apprenticeship or journeyman programs;
(C) Fees for professional licensure or certification; and
(D) Fees and tuition for mandatory continuing education
required to maintain professional licensure or certification.
Note: The purpose of this bill is to exclude certain employment-related expenses from the definition of gross income for
purposes of determining child support.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.