If you are going through a divorce and your spouse does not work or refuses to work, you may be concerned about the adequacy of your child support award. Child support is designed to ensure that the needs of California children are kept front and center, despite the separation or divorce of their parents. The law recognizes that both parents have a duty to contribute to their children’s support. This includes, in some circumstances, charging unemployed or underemployed parents with income earning capacity even though they may not be working at all. This is called imputing income.
Section 4058(b) of the California Family Code states that “the Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children”. In making this determination, courts will consider three factors:
- A parent’s ability to work;
- The opportunity of a parent to work; and
- Whether a parent working is consistent with the best interest of the children.
The first factor is whether a parent is able to work. This may be restricted to differing degrees. For example, a parent disabled from working in any job will be considered differently than a parent disabled only from working in his or her chosen field. If the ability to work is only partially restricted, a family court may impute earning capacity to the disabled parent. Similarly, if a parent refuses to work or hasn’t worked for a long time, he or she may be perfectly capable of working, given the motivation to do so.
The second factor in determining whether earning capacity will be imputed to a parent is opportunity. In other words, are there available jobs that the unemployed parent is capable of performing?
If a parent is able to work and has the opportunity to do so, the final factor is whether it is “consistent with the best interests of the children” for that parent to work. Examples of issues that might make a parent working inconsistent with the children’s best interest include a parent taking care of an infant or special needs child.
Ideally, there is no dispute about a party’s true ability to work. However, when this issue is contested, there are a few tools that may be used to obtain an objective determination of a party’s true limitations. The first tool is called an independent medical examination (“IME”). This is a medical examination performed by an independent health care provider to determine the ability of a person to work. A second tool that may be available is the use of a vocational expert to assess the ability of a party to work, as well as the opportunities he or she may have for gainful employment.
If you are concerned about your spouse’s refusal or inability to work, or if you believe your spouse is underemployed for the purpose of depressing his or her income, you need an aggressive attorney to evaluate the facts of your case and determine your options. At the
Law Offices of Judy L. Burger, we recognize the importance of a proper child support order to the well-being of your children. We specialize in difficult custody and support issues, and we’ll put our experience to work for you. Call us today at (415) 293-8314.
