I've worked a steady diet of OT the last six months and am definitely not complaining about the much needed bump in funds. However, even though you can clearly see it listed on my pay stubs separately it is still lumped into the overall gross. Will tis skew the numbers and overall picture of my financial situation or will the trustee base my income of what a normal 40 hour check is? I'm hoping that the extra hours don't come back to hurt my case. Also, I receive a monthly VA check for $131. How does this fall in the scope of things? Thanks.
VA check is included in means test calculation.
As for the OT, the question could depend on the likelihood that you will have OT in the future. There is a case which I have attached which is commonly referred to as "Lanning" which stands for the proposition that income that can not be expected to reoccur can be excluded from the means test. In that case, the person filing for BKC relief received a severance payment within the 6-month period prior tot he month of filing because she lost her job. There would be no way for her to have that same income reoccur.
Your situation is a bit different since there may be OT in your future.
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The devil is, as always, in the details. Does this overtime put you over median income? You may be able to explain your of as an anomaly. I am always more concerned about the current budget than the 6 month average. An experienced bankruptcy lawyer will be able to roll with this issue - I see variation in income in most cases I handle. Hope this perspective helps.
The means test is historically based over the last six months, so your overtime will be a factor if it puts you over the median income for your state. As my colleagues point out, you can adjust the means test numbers based on changes in circumstance that either have occurred or are virtually certain to occur (Lanning) so if you are no longer getting OT or are virtually certain to no longer get OT, then you have a basis for adjusting the numbers. If you are likely to continue getting OT and the OT puts you above the median income, then you may have to file a Ch13, but you will need to consult with an experienced bk attorney in your area to be sure. Just because you initial means test number is above the median income does not mean you will have to file a 13, just that a harder and longer look at the numbers will be necessary.
Due to a quirk in the way the law was drafted your VA benefits are not excluded from income even though Social Security benefits are, so your VA benefits will figure into the means test.
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Most likely, the overtime and the va check will be taken into account when applying the means test. Do you know if you qualify for chapter 7 or have you done any preliminary calculations based on the Maryland means test? If it is not a substantial amount it may not even matter in the bigger picture. Other details would need to be considered to give you better advice. Such as, car or house ownership or any judgements on your part? Have you made any large purchases in recent months or withdrawals? Your financial activity in the months leading up to filing will be scrutinized as well as your pay. I suggest making a couple phone calls to local attorneys as a way to start figuring out your options. Thanks and good luck.
The means test is a historical look back of 6 months of income. As a result of the overtime, if you exceed the median income, you may still qualify for chapter 7 depending on your expenses. Alternatively, you may need to wait to file chapter 7 until after the overtime does not impact the means test.
I would recommend you contact an attorney who is experienced with passing their clients through the means test.
You give so little detail that it is impossible to answer. A good attorney will look at tax returns, pay stubs, expenses, bank records, credit card and other debts, assets, etc and then give you an answer. Sometimes we can figure it out at that initial meeting and sometimes we need to do some analysis. Seek a consultation and get the answers which will show you to make a good decision.
This is not to be considered legal advise and no attorney client has been established.
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