For some non-working ex-spouses about to receive alimony, the promise of easy street may seem within grasp. After all, once the alimony and/or child support payments are settled, that can replace one's ordinary income, right? One might never have to work again!
Not so fast, says the court.
If you refuse to work while actually being able, your alimony and/or child support payments could be impacted, and the court could intervene.
Imputation of Income
The court has the power to “impute” income onto a non-working spouse and has quite a bit of discretion when it comes to determining your earning capacity. In other words, if you are fully capable of earning a certain income, then the court could assign you that income even if you are making nothing at all. For example, based on market factors and ability, if the court determines that your earning capacity is $10,000 a month, then that may factor into how much alimony and/or child support you should be paid.
Vocational Evaluation
Often, the court orders what is called a “vocational evaluation” in order to determine the non-working spouse’s earning capacity before spousal support is settled or if there is a request to modify the support amount. When this occurs, the court assigns a vocational evaluator to determine what your earning capacity should be. The vocational evaluator bases this on a number of factors, including your marketable skills, your age, health, education, and employment history, among other things.
The vocational evaluator might determine that you are under-employed; that is, that you are employed but earning far less than you should be given your ability. The number the evaluator comes up with could become your “imputed” income on which spousal support is based, even if, in reality, you make far less, or nothing at all.
Keeping it Fair
There are many reasons for this. For instance, if the couple has children, then it is meant to ensure that not just one parent becomes financially responsible for the children while the other shirks off responsibility.
It can work in the other direction, too. If the person paying child support suddenly pleads poverty in an attempt to lower payments, the court can determine if that parent is looking for work in good faith. If not, the court is capable of imputing income equal to what he or she was previously being paid or the fair market value of their earning capacity.
However, just because you lose your job doesn’t mean the court would treat you unfairly. The court would look at a combination of circumstances that would include your willingness to work, your ability to work, and your opportunity to work.
For example, the court would not look kindly at you quitting your job to travel the world. But suffering a layoff from longstanding employment would probably get you a fair degree of leniency and buy you a reasonable amount of time.
Want to Make Sure You Are Getting A Fair Deal When it Comes to Spousal and Child Support?
Whether you are receiving or paying support, it is essential for the court to consider all the factors so that you can get the best outcome. If you have questions about getting a fair deal, contact Park Family Law. Whether you need an experienced mediator to amicably and efficiently settle your case or an aggressive litigator to get you the best result in court, Park Family Law can assist you every step of the way.