Many people wonder whether their overtime income will be considered in determining what their child support obligation will be. The answer depends on the nature of the overtime work.

Minnesota Statute Section 518A.29 sets forth how gross income is calculated for child support purposes. Subdivision (b) states:

Gross income does not include compensation received by a party for employment in excess of a 40-hour work week, provided that:

  1. child support is ordered in an amount at least equal to the guideline amount based on gross income not excluded under this clause; and
  2. the party demonstrates, and the court finds, that:

(i) the excess employment began after the filing of the petition for dissolution or legal separation or a petition related to custody, parenting time, or support;

(ii) the excess employment reflects an increase in the work schedule or hours worked over that of the two years immediately preceding the filing of the petition;

(iii) the excess employment is voluntary and not a condition of employment;

(iv) the excess employment is in the nature of additional, part-time or overtime employment compensable by the hour or fraction of an hour; and

(v) the party’s compensation structure has not been changed for the purpose of affecting a support or maintenance obligation.

Let’s unpack this provision. First, note that there are two conditions that must be met in order for overtime income to be excluded from the child support calculation. Subparagraph (1) requires that the final child support order be at least equal to the guideline amount. In other words, overtime income cannot be excluded if the final child support amount is a downward deviation from the child support guidelines.

Second, Subparagraph (2) requires the overtime worker to convince the court that the facts listed in Subparagraphs (i) – (v) are true. Looking at this list, one can infer that the intent of the overtime is important. If the overtime worker has, historically, always worked more than 40 hours per week, or if the overtime worker’s job routinely requires overtime, then the overtime income will likely be included for purposes of calculating child support. On the other hand, a person who does not usually work overtime, but decides to pick up extra shifts or a second job because they know they will have to start to pay child support soon will likely be able to have their overtime income excluded for purposes of calculating child support.

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