Can He lower spousal support payments imputed based on minimum wage?

Posted on Jun 25, 2021 by Katie Carter


We recently got a question from a man through our live chat system, and – I’ll admit – it really got under my skin.

He explained that a spousal support order had been entered in his case, and that it was based on his wife’s having been imputed income. At the time, the judge ordered that income be imputed based on what was, at that time, the minimum wage. As of a few months ago, the minimum wage in Virginia was raised.

His question was whether he could just manually adjust the spousal support award on his own, and pay his wife less than what the court ordered.

I’m not sure what happened; obviously, we don’t represent men. And we don’t have attorneys on the phone answering calls, so, even if he had called in, he wouldn’t have reached someone who could have answered his question. But I do sort of wish I could have, because I would have been very pleased to tell him that no, he absolutely cannot just take it upon himself to change court ordered spousal support.

I shot a quick video about it and posted it on our Facebook page, which you can see if you’re so inclined. Mostly, I hope he’ll see it so he doesn’t shortchange his wife unnecessarily and force her to take him back to court. I also hope she’ll see it, so she’ll be empowered with a little bit more information as she faces off against this guy – who, it sounds like, is a lot like many of the husbands whose wives we represent. Perhaps a narcissist?

You can’t change a court order just because you want to.

A court order is a court order, with emphasis on the word ‘order’. It’s not a polite suggestion or a request; it’s an order. An order from a judge who, it must be said, will not take too kindly to someone ignoring him.

It doesn’t matter if the underlying law has changed. The orders that already exist based on the old laws don’t just fall apart because of it. Can you imagine what the world would be like if that were true? It would be an absolute mess. It just doesn’t work that way, nor would anyone really actually want it to.

Can spousal support awards be modified?

Sometimes! Most of the time, a court order or agreement can be modified if there’s a material change in circumstances – like, if one party retires. Does the change in minimum wage qualify as a material change in circumstances? Honestly, I have no idea. Maybe, but also maybe not.

But that’s not always. If the agreement or court order says something different (like that support is non modifiable), then it won’t be modifiable. Whatever the agreement or order specifically says regarding modification will supersede the general rule that a material change in circumstances is needed.

Even if it can, though, you’ll have to follow (or he’d have to follow) proper legal channels to get it modified. Specifically, you’d have to file a petition to modify, and both parties would have to have access to the legal system.

If he did something like that on his own, it certainly wouldn’t help his case in court, either!

Wait – what does imputation of income mean?

Imputation means that the court is making you responsible for money you didn’t actually earn. In this case, the wife probably didn’t earn any money at all, but because a vocational expert testified that she could work and would be able to earn minimum wage, the judge added that to the formula.

The court can’t force you to work, but it can tip the scale in this way. It can happen in child support or spousal support cases, especially ones where the court ultimately feels that the person receiving support is either voluntarily underemployed or unemployed. Choosing not to work – especially if you are able – could mean that income would be imputed to you.

It works against women in some cases, but for them in others. Imputation is the same thing that keeps a husband who earns $100k annually from getting away with quitting and flipping burgers for $17k annually in order to avoid monthly spousal support payments.
In this case, husband is saying that because the minimum wage went up, so too should the amount that is then imputed to her.
Maybe it’s true and maybe it isn’t, but what I KNOW is true is that he can’t go around modifying the court’s order – without following proper legal channels – on his own.

Ultimately, the increased minimum wage will likely impact spousal support awards moving forward, in the sense that the new minimum wage would be what was imputed, if anything was imputed at all. But whether it’ll impact this case, in the event the husband actually does file for a modification, I really don’t know.

For more information about spousal support, or to request a copy of one of our books on divorce and custody cases in Virginia, visit our website or give us a call at 757-425-5200.