Child support is always a challenging issue, especially because it’s an ongoing obligation – at least until your child reaches the age of 19 or graduates high school. If child support is ordered when the child is very young, things can change dramatically until they age out of the system and become a legal adult.
Awards of spousal support, too, can go on for many years, and are sometimes – under certain circumstances – modifiable. But it’s not even just a question of what happens to the parties’ income levels over time; it’s also a question of the level of income that exists at the time of the divorce and/or separation of the parties.
Divorce is, without exception, a pretty catastrophic event that involves change in both parties lives on a number of different levels. In some situations – whether for good reasons or bad reasons – that involves changes in income.
I often hear things like, “I’m going to flip burgers instead of working my job, so that I don’t have to pay you a penny in support.”
That’s an easy one, and one where imputation of income is going to come up pretty quickly. We can look at a person’s pattern of earnings – whether from their W2s or tax returns or whatever documentation we have – and show that someone is ‘voluntarily underemployed’. We can look at whether they quit a job or were fired from it (and why, and under what circumstances) to really get to the bottom of what’s going on.
Likewise, if someone is refusing to work when they’re otherwise qualified, we can impute income to them, too. We would call this voluntary unemployment. It’s not assumed that, just because you stayed at home during the marriage, you’ll be able to continue to resolutely refuse to work (especially if your age, education, training, and work experience suggests that you would be employable).
What is imputation of income?
Imputation of income is when the court assumes that you’re capable of earning at a certain level, even if you’re not currently earning it. The court can hold you accountable for earnings at a certain level (based on either the evidence that shows what you were earning or, alternatively, what someone like an employment expert testifies that a person like you could earn in your field with your specific background), and calculate support using those numbers.
So, if you were earning $100k but you quit your job to earn $30k flipping burgers, the court can put $100k into the child and/or spousal support formulas – whether for an initial determination or a modification – if it finds that you’re voluntarily underemployed or voluntarily unemployed.
Wouldn’t the court try to maintain the same standard of living that existed during the marriage or relationship?
Yes and no. It’s probably going to be frowned upon to leave your job to earn significantly less. But you’re also probably not going to be able to rely solely on child and/or spousal support to make up for a refusal to get a job – unless there are some other circumstances (like disability or mental illness or the need to care for a disabled or ill child) involved that make employment impossible or impractical or otherwise unhealthy.
You don’t get to work less – or not work at all – in order to get as much support from the other party as possible. Basically, you should do what you’re capable of doing and, in as much as possible, try to support yourself to the extent that you are able.
Does that mean I’m stuck in my job because I have to keep earning the same amount of money?
No. You’re not really stuck – at least, not exactly, and not any more than anybody is stuck. Over the years, the court has revised its opinion a little. The basic rule is that making a reasonable choice, even if it results in earning less money overall, doesn’t mean income will automatically be imputed to you.
Making a career change or pivot, even if you earn less money, doesn’t mean that you’re automatically going to be held to that higher standard. You’re not stuck in a job just because you were earning a certain amount of money there.
Ultimately, this opens you up to the possibility of finding a more satisfying but ultimately lower paying job, or even doing something like going back to school.
Obviously, this is one of those things where you’ll need to be making choices that seem to be within reason, and not just going to school or earning less to harm your ex or to get more in support. But you’re also not just completely stuck in, say, a toxic work environment, or forbidden to go back to school to change careers, just because you’re paying or receiving support.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give us a call at 757-425-5200.