Underemployed Spouse & Child Support Payments

My spouse can earn more but refuses to. How is this handled for purposes of Child Support?

When we calculate child support, we generally use the actual incomes of both spouses. But what happens when your spouse is under earning? That is, s/he is working less than full time and/or is not earning as much as s/he is capable of? You may have some leverage in negotiations and/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.

The Basics

Both parties have duty to support her or his minor child, even absent a court order (Family Code section 3900). Parents have an equal duty to support their kids.

The Legal “Standard”

The court may, in its discretion (and consistent with your child(ren)’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 you ex has two masters degrees but works a part-time job in retail. The obvious conclusion is that s/he is able to earn more money by given his/her education level. But what if s/he has never worked in the field s/he is 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).

Hello Divorce Founder Erin Levine answers: I left my husband, relocated, and have full custody. Will I owe spousal support?

What Next?

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 for 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 and/or her/his 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.

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