What if Your Ex Can Earn More But Won't to Avoid More Child Support?
When we calculate child support, we generally use the actual incomes of both spouses. But what happens when your spouse is underearning? That is, they are working less than full-time and/or are not earning as much as they are capable of?
You may have some leverage in negotiations or a court hearing to seek a modification to the child support number based on your spouse's refusal to seek employment commensurate with his or her experience and education level. If you are able to successfully prove that your spouse is underemployed, imputing higher wages to her/him can change the child support calculation dramatically. If your spouse is the payor, child support will increase. If s/he is the recipient of support, support will decrease.
Parental duties in supporting minor children
Both parties have a duty to support their minor child, even absent a court order (Family Code section 3900). Parents have an equal duty to support their kids.
The legal standard for child support
The court may, in its discretion (and consistent with your children's best interests), consider the earning capacity of a parent instead of his or her actual income for purposes of setting child support.
However, it's not an easy standard to prove. Say, for example, your ex has two master's degrees but works a part-time job in retail. The obvious conclusion is that they are able to earn more money given this education level. But what if they never worked in the field they are educated in? To gain leverage here your job is to prove that your spouse has the ability and opportunity to work. Earning capacity also must be based on an objectively reasonable work regimen (usually 40 hours per week).
How can you prove your spouse is underearning?
Proving these two things (ability and opportunity to work) can be quite burdensome. We recommend that you start by looking informally at a salary guide such as Glassdoor or PayScale to get an idea of what salaries are like in your spouse's field. Then look to job websites to see what sort of jobs are being advertised and whether your spouse has those qualifications.
If you present this information to your spouse or their attorney, that might be all you need to obtain some leverage for negotiation. Perhaps you agree to input a middle-ground number in the support calculator. If this doesn't work, a vocational expert may need to be employed to testify at a court hearing.
Frequently Asked Questions About an Ex Who Can Earn More But Won’t
What if my ex is purposefully earning less to reduce child support?
Courts can impute income when a parent is deliberately unemployed or underemployed. If the judge finds they could earn more, support can be based on earning capacity, not just current wages.
What does it mean to have income “imputed”?
Imputed income is a reasonable estimate of what someone can earn considering work history, education, skills, local wages, and available jobs. The court uses that figure to set support.
What evidence helps prove voluntary underemployment?
Prior tax returns and pay stubs, resumes and credentials, job listings and wage data, messages about turning down work, and vocational expert reports are all persuasive.
Can I ask for a vocational evaluation?
Yes. A neutral expert can assess skills, job market options, and likely wages. Judges often rely on these evaluations when deciding whether to impute income.
Should I file for enforcement or modification?
If payments are missing under a valid order, seek enforcement. If the amount is too low because your ex chose to earn less, request a modification and ask the court to impute income.
What if my ex is self-employed or paid in cash?
Courts can look at deposits, business records, expense patterns, and lifestyle to estimate true earnings and set a fair support amount.
How to Address an Ex Who Can Earn More But Won’t
Review your current order and payment history
Clarify what is owed and whether you need enforcement for missed payments or a modification to change the support amount.
Compile evidence of earning capacity
Gather prior income records, licenses, and job history. Collect job postings and local wage data for comparable roles.
Document voluntary underemployment
Save communications showing declined jobs or reduced hours by choice. Track spending or lifestyle clues that suggest higher income.
Request a vocational evaluation
Ask the court for a neutral expert to assess realistic job options and expected wages.
File for modification and/or enforcement
Use the required forms to request income imputation, an updated support amount, and enforcement for arrears if needed.
Prepare for the hearing or mediation
Organize your exhibits and summaries, including expert reports. Be ready to explain why imputing income supports your child’s best interests.
Secure clear orders and follow-up steps
Request written findings on earning capacity, updated support terms, and wage withholding to promote timely, consistent payments.
