Family law is premised on the adjudication of cases with the best interest of child in mind. The law requires both parents to provide and share their respective livelihood with their dependent children, even upon divorce. But what happens when the primary income earner during the marriage is all of the sudden earning less during divorce proceedings? This blog entry briefly explains the idea of imputation of income in cases where a party voluntarily shifts careers to a lower paid position, stops working less, or otherwise whose income dramatically drops to avoid 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 the best interests of the children.” The reason for this legislation is an obvious 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: 1) the ability to work, 2) opportunity to work and 3) 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 handy.
Usually, 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 pertinent 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 evidence can certainly help persuade an ambivalent 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.
Hiring a Certified Career counselor can be expensive but certainly worth shelling out a few bucks to shine light on the evasiveness and totally worth it in the long run.