Calculating Child Support for an Unemployed or Underemployed Parent
Both parents are equally legally responsible for the financial support of their children, both during marriage and after divorce. In most cases, a child lives primarily with one parent (the “custodial parent”), who receives monetary child support from the other parent (the “non-custodial parent”). The law generally assumes that the custodial parent is providing their child support by keeping a roof over the child’s head and seeing to the needs of their daily life. But what happens when the non-custodial parent is unemployed or underemployed? In such cases, the parent seeking child support may need a Stockton child support lawyer to persuade the court to use that parent’s earning capacity in lieu of their income.
Calculation of Child Support in California
California family law courts use a uniform formula to determine the amount of child support each parent owes. The factors the formula takes into account include, among others, (a) the number of children, (b) the amount of time each child spends in each parent’s physical care, (c) each parent’s income, (d) childcare expenses, and (e) various deductions (e.g., mortgage interest, hardships, retirement, etc.). The amount established by the formula is presumed to be the correct amount, although that presumption may be rebutted by the admission of evidence showing that the application of the formula would be unjust or inappropriate in a particular case.
Use of “Earning Capacity” in Lieu of Income
Calculating a parent’s income can be more difficult in some cases than others. For example, a situation often arises wherein the non-custodial parent is unemployed or underemployed, whether voluntarily or involuntarily. In such cases, the court in its discretion may consider a parent’s earning capacity in lieu of their actual income when determining their child support obligation. When determining a parent’s earning capacity, the court may consider the parent’s
- Employment and earnings history
- Job skills
- Educational attainment
- Criminal record
- Record of seeking work
- The local job market
- Availability of employers willing to hire the parent
- Prevailing earnings levels in the local community
When the court determines a parent’s earning capacity in lieu of their income, it “imputes” that amount to the parent as income even though the parent is not actually earning that amount.
When Do Courts Impute Income?
Courts do not necessarily impute income merely because a parent is unemployed or underemployed. For example, imputing income to a parent who is disabled or involuntarily institutionalized would be unjust. Courts typically impute income where it can be shown that the payor parent has both (a) the ability to work and (b) the opportunity to work. While California’s imputation guidelines are fault-agnostic (meaning that they apply regardless of whether a parent’s unemployment or underemployment is voluntary or involuntary), a parent’s deliberate avoidance of their family responsibilities is a significant factor in a court’s decision to impute income.
Speak to a Stockton Child Support Lawyer to Learn More
If you are seeking child support from a parent who is voluntarily unemployed or underemployed, an experienced attorney can help you argue for the imputation of income in a child support order. For more information, please contact a Stockton child support lawyer at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.