Imputing Income for Child Support
In California, both parents are legally responsible for the financial support of a minor child. Whether or not the parents are married has no impact on this obligation. A child is considered a minor until they turn 18 years old, or as much as one year later if they are still in high school, living at home and can’t support themselves. California calculates child support using a guideline calculator. There are numerous factors used to calculate child support, including but not limited to: both parents’ income, the custodial timeshare, the number of children, and child-related expenses.
Parents are free to agree on a child support amount independently of the court system. However, the courts cannot enforce a child support agreement until it has been brought before a judge. When parents cannot agree independently, either parent may request the court set the child support amount.
In certain circumstances the court may find it appropriate to impute or attribute income to one parent when calculating child support payments, even though the parent is not actually earning the imputed amount of income. Courts do this to ensure that the children’s needs are met and also to deter parents from shirking their parental responsibilities.
California courts consider three factors when assessing the need to impute income to a parent. The factors include the ability to work, the opportunity to work and the willingness to work. This generally results in three circumstances for which courts may impute income to a parent in a child support calculation: involuntary unemployment, voluntary unemployment and underemployment. However, the reason for unemployment or underemployment is crucial to determining whether or not imputed income should be used.
Involuntary unemployment occurs when a parent loses a job for a legitimate reason and cannot find work thereafter. In these situations, the unemployed parent may be required to prove to the court that their job was lost involuntarily, that they are working diligently to find another job and that they have been unable to obtain new employment due to a lack of job opportunities. Additionally, a parent may be considered involuntarily unemployed if they are suffering from a physical or mental disability that limits their ability to work. In such circumstances where a parent truly has no ability and/or opportunity to work, the court will not impute income when calculating child support.
Voluntary unemployment occurs when a parent is capable of working and has the opportunity to do so, but chooses not to work. Some examples of situations where a parent may be considered voluntarily unemployed include: a parent losing their job due to misconduct or illegal activity, a parent voluntarily taking early retirement, a parent quitting work to return to school, or a parent’s voluntary termination/quitting.
Voluntary underemployment occurs when a parent does not diligently seek employment at a level equal or better than income formerly received or the level they are capable of earning. Here, the court will look to the recent job history and current employment qualifications to determine if the parent is working at their full capacity. Some examples of situation where a parent may be considered voluntarily underemployed include: a parent voluntarily cutting back work hours, a parent refusing to reasonably use or invest their assets, or a parent voluntarily making a career change when it will not ultimately benefit the children.
When the court finds a parent is unemployed or underemployed, they will consider the reasons and if the court finds the parent is unwilling to work or be fully employed, the court may impute or attribute income to that parent. However, income will only be imputed when it is consistent with the best interests of the children who are subject to the support award.
Examples where income is commonly imputed include: a parent who drops from full-time to part-time employment so that they may pursue additional education or another interest, a parent who resigns from a job to start their own business, or a parent who intentionally reduced their income in order to avoid their duty of support.
Once a court has decided that income should be imputed in a child support calculation, they will look to the three factors discussed previously to determine the parent’s earning capacity; ability to work, willingness to work, and opportunity to work. The ability to work is typically assessed by a review of the parent’s education level, work skills and employment history. The willingness to work is determined by the parent’s behavior or efforts to find work. The opportunity to work is assessed by looking to the availability of appropriate job opportunities in the local area.
When it has been shown that a parent has the ability and opportunity to work, the court can then determine how much income should be imputed by reviewing evidence regarding salaries for similarly situated jobs. Whether or not income is imputed and the exact amount of imputed income will depend on the specific facts and circumstance of each case.
The ins and outs of child support can be confusing and the California “guideline” amount can be inappropriate at times. At Mello & Pickering, LLP, we have represented a variety of litigants in child support cases, from the stay at home mother who has not worked in twenty years, to the executive earing hundreds of thousands per year. No matter your situation, we can help you with any questions you may have regarding child support. Call our office for a free 20 minute consultation at (408) 288-7800, or to set up a one hour in office appointment.