Sometimes in divorce and custody matters, one party may voluntarily quit their job—or becomes voluntary “underemployed”—in an attempt to reduce their child support or spousal maintenance obligations. The logic goes something like the following: “If I earn less, I owe less.” Historically, Courts have disfavored this practice.
While long-standing case law disfavors this practice, it can be rather difficult to actually get additional money from your spouse in the situation.
If your spouse quits their job in order to reduce their presumptive child support obligation, you will likely have to go to court to fight them to pay the proper amount of spousal maintenance or child support. By employing a lawyer, you can put on evidence that your spouse willfully quit their job (or is working a lower quality job and they could have) and that you and your child should not have to suffer due to your ex’s whims.
By default, all parents in Arizona are required to work full-time—forty (40) hours per week—at a job that is appropriate for the level of skill and training they have. If a parent refuses to work full-time at their job, courts typically “impute” income equal to what they should earn at an appropriate job. The primary exception to this occurs when one parent is severely disabled or otherwise unable to meaningfully participate in their child’s upbringing.
The legal term “imputation of income” means that “if one Parent is voluntarily under employed or unemployed, their support obligation is still the same as it would be if they were appropriately employed.” One common scenario occurs when a parent earns essentially no money and is completely unemployed. As of writing this article, the minimum wage in Arizona is $12.80 per hour. The court assumes that all Parents are capable of earning at least the minimum wage, and all parents are capable of working a full-time job to support their children. Translated into numbers, this usually means that all parents are capable of earning at least $12.80 per hour while working 40 hours per week. Imputation of income prevents one parent from “gaming” the system and willfully earning less than they could.
During an evidentiary hearing, you will have to prove that your ex is earning substantially less money than they are capable of earning. As a rule of thumb, for the court to impute income upon your ex, you will need to be able to demonstrate that your ex earns at least 33 percent less than they are capable of making. For example, if your ex was previously employed as a manager and earned $60,000 per year, but shortly after your case was filed happened to start earning just $35,000 as a low-level employee, the Court may decide to impute income upon them. However, if your spouse was previously earning $60,000 but for a good reason (i.e. injury, illness, a bad economy), is now earning just $50,000 (especially after losing their previous job), it’s unlikely the court will find that your spouse is trying to evade their obligations, and the court will probably not impute income upon them.
Evidence is usually gathered early in litigation. After submitting and gathering your ex’s: (1) last three tax returns; (2) two most recent paystubs, and (3) they complete an affidavit of financial information, the Court will allow both sides an opportunity to testify to their finances and income.
One issue to bear in mind is that if your ex ACTUALLY quit their job to earn less, they are probably also using Google to find lawyers and articles that say things like, "How to hide income from child support." A lawyer can help expose this "hidden" income.
While the situation is complicated, the lawyers at Troon Law Group are able to make significant headway in cases like these. Give us a call at (480) 518-3569 to get started today.