Family law is always premised on what is in the best interest of the child, without exception. The law requires both parents to share their individual income with their dependent children, during divorce proceedings and even upon divorce. But what happens when the primary income earner during the marriage all of the sudden begins earning less during divorce proceedings; or the other spouse says they can’t find more work although they really could work more if required? This article explains the concept of imputation of income in cases where a party voluntarily shifts careers to a lower paid position, or begins working less, or could work more and chooses not to, or otherwise whose income dramatically drops for the specific purpose of avoiding higher support payments.
Imputed income is attributed or credited to a parent even though the parent is not actually earning that amount. Pursuant to Ca. Fam. Code § 4058(b), “the Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with what is in the best interests of the children. The reason for this legislation is an understandable one: to prevent parties from voluntarily reducing their earning capacity in order to avoid a higher paying child support.
In these cases, the Court will use three factors to determine the imputed income, the ability to work, opportunity to work and willingness to work.
The ability to work is generally determined by looking at a parent’s educational level, work skills and employment history. Opportunity to work is determined by looking at the local job market. Willingness to work is determined by looking at the parent’s behavior. If a parent wants to challenge the determination of the imputed income, the parent will need to supply proof. This is where vocational evaluations come in.
A vocational evaluation is conducted by a Certified Career Counselor. A party may seek out the help of one of these experts and present to the court the assessment as evidence of the party’s voluntary “underemployment.” The process usually begins with an interview seeking out the party’s relevant information affecting employability. The counselor will then conduct a labor market analysis reflecting the job opportunities given the qualifications of the party within the appropriate geographical area.
The hard, professional evidence can help persuade an undecided or uncertain judge. For instance, in re Marriage of Barth (2012) 210 Cal. App. 4th, the court held that income was properly imputed to a parent who was not unemployed as claimed but rather was self-employed and was either substantially understating income or was purposefully underemployed. In that case, a counselor offered uncontroverted evidence that the parent had the ability and opportunity to work and to earn $120,000 to $150,000 per year based on age, education and work experience.
In conclusion, hiring a Certified Career counselor can be expensive but certainly worth retaining their services and expertise to highlight the evasiveness, lazy or indifferent spouse when looking at the entire picture.
Please note by reading the information above & herein, no attorney-client relationship has been created. Moreover, the information provided herein is not to be relied upon as legal advice for your specific legal needs. Should you have legal questions feel free to contact The Law Offices Morton J. Grabel in Temecula at (951) 695- 7700. Mort, originally from Philadelphia PA, attended an ABA Law School, has an MBA, a Real Estate Broker’s License, a CA Nursing Home Administrator’s License and is a member in good standing of various local Chambers of Commerce.