Three Ways Working Overtime Can Affect Child Support in New York

Rincker Law Family/Matrimonial Law 9 Comments

Precious baby girl in cowboy boots and hatParents’ total income is used when calculating child support under the Child Support Standards Act (“CSSA”).  To arrive at the total income amount, the most recent year’s Federal tax return is usually used.  This includes overtime pay.  Overtime pay can be tricky as a source of income because it can be very inconsistent.  When the court calculates child support based on CSSA guidelines and finds an award to be “unjust or inappropriate”, it can vary the child support award to either include or not include overtime pay.  Here are some different ways that overtime pay can play into a child support award.

  • Where overtime was shown to be fairly consistent throughout the past few years:

The Court included overtime pay in the non-custodial parent’s income was Kelley-Milone v. Milone, 256 A.D.2d 554 (2nd Dept. 1998).  In that case the Court determined that it was proper to include the father’s overtime pay as gross income, as reported on his most recent Federal tax return, where his overtime pay was “fairly consistent as indicated by the defendant’s Federal tax returns of three consecutive years.”

  • Where overtime pay exists in a prior year and then is not available to an employee in current year: 

In Taraskas v. Rizzuto, 38 A.D.3d 910 (2nd Dept., 2007), the mother’s prior tax years reflected overtime pay which, as the mother proved, would not be available to her in the current tax year.  The Court concluded that since the mother could show that her prior year’s overtime pay would not be available in the current her income would be limited to the base, regular salary, in determining her child support obligation.

Similarly, in Kellog v. Kellog, 300 A.D.2d 996 (4th Dept. 2002) the father provided evidence in the form of a letter from his employer explaining that, due to “unique circumstances”, his income including substantial overtime in the prior year would be inconsistent with this income for the current year.  Thus, the Court used the father’s current salary in determining his pro rata share of child support, which did not include overtime pay from the prior year.

  •  Where overtime pay can be imputed to a parent in the current year:

As you can see from the above discussion, child support obligations are not defined solely by the parents’ current financial condition.  Because of this, the court can consider parents’ earning ability and impute income based on the available of overtime hourly to an employee/parent. See, Orlando v. Orlando, 222 A.D.2d 906 (3rd Dept. 1995).  This deters parents from adopting a cavalier attitude whereby they can dispose of ability to earn overtime income by merely refusing when it is voluntary overtime.

 

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Comments 9

  1. My Ex wife is trying to take me back to court she want to get a raise in child support she is wanting to attack the little overtime hours I have been making. I am a local truck driver. My overtime is not always the same it is based on my load several different things. I need legal advice.

  2. I work fishing boat for last 4 years now keep raising my child support be make little more but this I take this job becourse of overtime so can pay my child support and save my self money but not working for me they keep raising my support what can do to fight back

  3. I make 72,000 a year after child support taxes Health dental vision for me and the kids I take home 23,000 a year does this sound right we agreed that she would have full custody until I get a house but with the price of rent and living I’m lucky to eat one or two meals a day mostly ramen noodles I work 12 and a half hour days is there anyway I can get my overtime so I can get a house and get partial custody I took a vacation for two weeks my paycheck was $160 for two weeks worth of pay without overtime I make 2800 every 2 week’s but take home 840

  4. NOTHING NO ONE CARES IN NEW YORK ABOUT WHAT YOU TAKE HOME OR CAN AFFORD TO LIVE. THEY RATHER GIVE THE MOTHER YOUR ENTIRE CHECK AND STILL ALLOW HER TO KEEP THE CHILD FROM YOU AND YOU LIVE HOMELESS. YOU HAVE NO RIGHTS…17% MY BUTT….I TAKE HOME AFTER MEDICAL AND CHILD SUPPORT LESS THEN I PAY OUT. I HAD TO SELL MY CAR, HOUSE AND LIVE IN A VAN IN ORDER TO CUT EXPENSES AND NOT BE IN DEBT. HOW THE HELL CAN THIS COUNTRY LET THIS HAPPEN…OH WHAT DOES SHE DO FOR A LIVING…HAHAHA WELFARE AND DISABILITY. SCREW KOREA TAKE CARE OF THE BLUE COLLAR HARD WORKING MEN OF THIS COUNTRY!!!

  5. I work for the post office and I normally get overtime here and there. Can my ex wife take me to court to adjust the child support?

  6. Going trough court cost me 14 grand the first time round . I put all the overtime in I could to get the money to pay for courts to see my son then she hit me with csa . My basic is 24k but that year I picked up 36k now I’m just working overtime to pay £260 a month csa and to keep a roof over our head and food for me my other half and 2 year old son.
    Csa should go of a basic wage not overtime.

  7. I paid $225 a week child support to someone who lives at home with her mom and dad has no bills and buys my daughter nothing takes her nowhere does nothing with her why is this happening

  8. I have a question I would like to know when they calculate child support and maintenance do they deduct the child support out of his income 1st and then give me maintenance on that or do they subtract the maintenance out of his income and then give me child support on that As of right now his lawyer is showing that they took out the maintenance at of his income and base my child support on what was left after maintenance was taken out I thought it was the other way around I thought child support came out 1st of his income and then I get a percentage of maintenance offered that because now my child support is lower than it should be because they took my maintenance out 1st thank you

  9. I fear that I am next on the list of the men mentioned above to get more that 60% of my net taken from me in the form of child support. I am a nurse in NYS and my base income is now $45,000, this past calendar year I grossed about $63,000 busting my ass 60-70 hours a week to pay off bills and finally catch up in life. My ex-wife just conveniently submitted a petition to have my support amended because she feels I was not honestly reporting my income AT THE BEGINING OF THE YEAR when we finalized our divorce(before I even earned the money). Everything extra I earned was purely coincidently overtime I was able to pick up and work very hard for but in no way is guaranteed or indefinite. I’m screwed, I’m going to be living in a shelter, so my girls mother can live at home with her father and boyfriend collecting more of my money, oh did I mention that even though my ex has been through 4 vocational programs as an adult she remains unemployed. I don’t want to lie or be dishonest at court its not in my nature, I want to pay an honest and fair amount of support for my girls but I am almost certain I’m going to get taken to the cleaners that this petition hearing. All because I wanted to work really hard this past year and make something of myself.

    PS: To the pig that is worried how or why her maintenance or child support comes out first, why don’t you just get a job and go work for it yourself and leave that poor man alone, your ex-husband sounds like he was dealt a really lousy hand in life when he met you Laura Kurtz!!!

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