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.

Hello Divorce Founder Erin Levine answers: I left my husband, relocated, and have full custody. Will I owe spousal support?
Founder, CEO & Certified Family Law Specialist
Mediation, Divorce Strategy, Divorce Insights, Legal Insights
After over a decade of experience as a Certified Family Law Specialist, Mediator and law firm owner, Erin was fed up with the inefficient and adversarial “divorce corp” industry and set out to transform how consumers navigate divorce - starting with the legal process. By automating the court bureaucracy and integrating expert support along the way, Hello Divorce levels the playing field between spouses so that they can sort things out fairly and avoid missteps. Her access to justice work has been recognized by the legal industry and beyond, with awards and recognition from the likes of Women Founders Network, TechCrunch, Vice, Forbes, American Bar Association and the Pro Bono Leadership award from Congresswoman Barbara Lee. Erin lives in California with her husband and two children, and is famously terrible at board games.