Imputation of Income in Virginia Child Support Cases
Support – both child and spousal – is often a big issue in a lot of Virginia divorce and custody cases. Mostly because ex-husbands don’t want to pay it, and ex-wives are in desperate need of it.
Usually, imputation of income is a bigger issue in a spousal support case, so I’ve written a fair amount about cases like that. Today, though, I want to talk to you about imputation of income in a child support case, because there are a couple points about how it works that I think you should be aware of.
What is imputation of income?
Put as simply as I can, imputation of income means to make someone responsible for earning income at a certain level, regardless of whether they actually are earning it. The court can’t force anyone to go back to work or to get a job or to work full time instead of part time. But what the court CAN do is find that you are capable of earning at a higher level and then hold you accountable for that level of income.
This works in reverse, too. He can’t leave his well-paying job for one flipping burgers; income could be imputed to him if the court found that he was ‘voluntarily underemployed’.
Usually, in these types of cases, there’s some kind of expert involved (we call them vocational experts) who will look into your education, experience, and background and represent to the court what you’re capable of earning and where you could potentially get a job earning that amount. The expert’s testimony can be refuted – often with a dueling expert – but a lot is going to depend on the specific circumstances of your case.
Your education, work history, your physical and mental condition, your criminal background, and so on will all play a role in whether you can work, where, and how much you could potentially earn doing that work. Ultimately, though, whether you choose to actually work or not is a decision you’ll have to make on your own. It may be a fairly costly decision, though, as the court can impute that income to you whether or not you decide to try to get a job.
Has the pandemic made imputation cases easier or harder?
The impact that the pandemic has had on family law cases still remains to be seen, but I do think that it’s probably safe to say that there’s a stronger push towards imputation right now. So many industries are desperate for workers that it’d be only too easy to get a job – and, if a job is possible, many judges because that the lesser earning spouse should have one, if only to lessen the burden on the higher earning spouse.
I think it should be your choice to go back to work but, as a professional working mom myself, I’m definitely skewed towards the benefits of having a separate job, independent of your current or ex husband, if only for the sake of the independence it gives you. It’s never just about a paycheck, though a paycheck is nice. It’s also about independent access to health insurance and other benefits, retirement benefits, and even your social security later on down the line. It’s best to be aware of all of the benefits of working, even though you may ultimately choose not to go down that road.
I’m pro working women; I can’t help myself. But I also know there are lots of circumstances where it might not be ideal – especially if your education or training is way out of date, you’re too physically or mentally unhealthy for work, or if the demands on your time (like, with a special needs child) are just too great to support a continuous workload. It happens – and these are all defenses we could raise in court, if it came to that. But there’s also a few other things you should know.
When income is imputed for the purposes of calculating child support, childcare costs must be considered, too.
It’s not like you go off to work and start immediately rolling in the dough, right? Of course not. If you’ve got young children, or special needs children, childcare is a major factor.
In a lot of cases, my clients tell me that they can’t afford to go back to work because what they earn is less than the cost of daycare. While I do think that’s often a relevant consideration in a two parent household, that argument holds less water in a divorce or separation context. I’ve actually written a pretty lengthy article, looking at what happens to child support with the cost of daycare when a mom returns to work that I think you should read.
In summary, though, I’ll say this: when you and your child’s father are not together, you may find that you going back to work actually costs him MORE in child support, rather than less. (For details on why, and some illustrative calculations of guideline child support, check out the article.)
If your child’s father is pushing for you to go back to work, or holding the threat of imputed income over your head, run a couple guideline scenarios. Get an idea what you could reasonably earn, get a quote from a childcare provider (a daycare, a nanny, an au pair, whatever) and compare it to the alternative.
It may be that he is (unpleasantly) surprised.
The statute ALSO provides that childcare must be available in order for income to be imputed in child support cases.
It’s not just a question of how much the imputed childcare amount affects guideline support, it’s also a question of availability of childcare at all.
That can be a big issue, especially with special needs children. Even in regular cases, finding a place to provide child care – especially if you have to work odd hours, overnights, or weekends – can be difficult and very costly.
If you can’t find childcare, that would be another argument against the imputation of income to you.
Imputation cases are tricky, especially because there’s so much misunderstanding surrounding them. It’s not just a question of what you earn or could earn, there’s also the fact that available childcare must be possible.
In this pandemic-centered world, those are two things that are certainly not a given.
For more information or to schedule a consultation, give our office a call at 757-425-5200.