Family Law Rules on Imputing Income to the Underemployed
By Orlando Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
What Does It Mean to Be Underemployed in Divorce and Paternity Cases?
In family law, underemployment is about being unemployed, or earning substantially less income than in the past. How underemployment income is calculated affects child support and alimony payments.
As discussed in Measuring Income In Divorce, litigants in a divorce or a paternity matter must produce numerous documents that establish their current income. Answering all the questions in these documents may be cumbersome to produce for a divorcing couple or in a paternity case. However, this is what makes possible for family courts to set a litigants imputed income for purposes of alimony, child support or other payments required by family law.
But for litigants that are underemployed, it gets more complicated because one or more of these questions may arise:
Is Recent Underemployment Voluntary or Not?
First, the attorneys will battle over whether the party’s current underemployed status is voluntary or involuntary.
Naturally, the side seeking an increased child support or alimony amount will develop facts that tend to prove that the unemployed parent either quit a job for dubious reasons, and/or has not earnestly looked for similar work since leaving the former position.
Conversely, the attorney representing the unemployed party will try to convince the family court that his client was terminated or laid off for reasons beyond his or her control, and has made good-faith, albeit unsuccessful efforts find equally lucrative employment.
Most family court judges will not hesitate to set an imputed income based on a previous higher actual income to a parent, if the other side has met the burden of proof in establishing that the paying parent deliberately earns less money in an effort to avoid paying child support or alimony.
However, the burden of proof remains with the party arguing underemployment. Many jobs are heavily dependent on economic cycles. A contractor who was earning six figures 10 years ago may indeed only be assigned his current annual salary of $40,000.00. Each case must truly be examined on its own merits.
Is Underemployment an Extended Unemployment?
This scenario is most common for a wife who once had a career, but has devoted the last several years of her life to being a “stay-at-home” mother. Contrary to popular belief, family courts do not simply assign her an income of “zero”.
Assuming she is able-bodied and under 65, the wife receiving alimony will at least have her income projected at the minimum wage for a 40-hour work per week. If she possesses some relevant job experience, as well as a college degree, a court may assign her an imputed income considerably higher than a minimum wage. However, under no circumstances will a court impute her an income higher than she has ever earned before.
Is Underemployment a Voluntary Change in Careers or a Return to School?
Occasionally, a parent is transitioning from a well-established career to a new career, or is temporarily foregoing a lucrative income to pursue opportunities in higher education. How do family courts assign an imputed incomes to these litigants?
The party who is making the career change has the burden of proof in establishing that the career change will benefit the children while they are still minors (will earn more money before the children turn 18). If that parent meets that burden of proof, he or she will not be imputed a former income, and will probably just be assigned a minimum wage. However if the parent is changing careers merely to “find themselves”, the family court judge will assuredly impute the former income.
How To Get Help
If you have any questions about the imputation of income, feel free to contact AAA Family Law at (407) 260-6001, and schedule an initial consultation with Orlando family lawyer Eduardo J. Mejias.
At the consultation I will (1) carefully listen to your situation, (2) outline a plan of legal action and (3) quote you a fixed lawyer retainer fee that you will know before you make any payments or sing a contract, not an unpredictable hourly rate whose total you would not know until the case is closed.
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