A parent cannot avoid child support obligations simply because the parent is unemployed or underemployed. In many jurisdictions, this frequently recurring phenomenon encountered in cases where the amount of child support is in issue is referred to as “impoverishment”.[1] All too often, a parent’s income decreases prior to trial or after judgment, which gives rise to a modification petition by that parent because of a “material change in circumstances”. To be sure, there can be factors that cause a person to be “involuntarily” impoverished. The most common of these are loss of employment without cause, unexpected illness or disability, adverse economic conditions in a particular industry and an array of other unavoidable occurrences.
December 23, 2019 Child Support
Proving Voluntary Impoverishment in Child Support Cases
By Lana K. Hawkins
Most experienced family law practitioners have been on both sides of the impoverishment issue. If you represent the parent who claims involuntary impoverishment, your job is to show that economic conditions prevent your client from earning income at the level produced in the past, that your client’s age or alleged physical condition have caused a decrease in income, that your client does not have sufficient assets that can be converted to cash, or any number of reasons that tend to show involuntariness. On the other hand, if you represent the parent who claims voluntary impoverishment on the part of the opposing party, you will need to persuade the court that any termination was for cause, that any change in careers resulting in a decrease in income was not a reasonable choice, that the parent’s past employment history, education and skill level are indicators of potential earning capacity, that the opposing party possesses convertible assets that can be used to calculate income, that the opposing party has not in good faith pursued employment that would produce the highest potential income for the opposing party and any other factors recognized by courts in your jurisdiction.
Once voluntariness has been shown, child support may be calculated based on a determination of potential income, which is imputed by the court to the party found to be voluntarily impoverished. In Alabama and most other jurisdictions, potential income is determined by estimating the income that parent would otherwise have and then imputing to that parent the estimated income. Alabama’s child support guidelines, which are similar to those in other jurisdictions, require the court to calculate child support based on that parent’s imputed income. Rule 32(B)(5) of the Alabama Rules of Judicial Procedure, states in part as follows: “In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of the parent, based on that parent’s recent work history, education and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.[2]
Other jurisdictions, such as Maryland, have discussed the factors that may be considered in determining involuntariness through case law to include (1) his or her current physical condition; (2) his or her respective level of education; (3) the timing of any change in employment or financial circumstances relative to the divorce proceedings; (4) the relationship of the parties prior to the divorce proceedings; (5) his or her efforts to find and retain employment; (6) his or her efforts to secure retraining if that is needed; (7) whether he or she has ever withheld support; (8) his or her past work history; (9) the area in which the parties live and the status of the job market there; and (10) any other considerations presented by either party. [3]
In the District of Columbia, the element of voluntariness is characterized as bad faith or deliberate conduct used to reduce a parent’s income. These terms are codified in D.C. Code § 16-916.01 as follows:
(10) If the judicial officer finds that a parent is voluntarily unemployed or underemployed as a result of the parent’s bad faith or deliberate effort to suppress income, to avoid or minimize the parent’s child support obligation, or to maximize the other parent’s obligation, the judicial officer may impute income to this parent and calculate the child support obligation based on the imputed income. The judicial officer shall not impute income to a parent who is physically or mentally unable to work or who is receiving means-tested public assistance benefits. The judicial officer shall issue written factual findings stating the reasons for imputing income at the specified amount. (emphasis added).
Regardless of the factors that are recognized in your jurisdiction, the use of discovery becomes critically important if you are faced with a situation where you have the burden to prove voluntary impoverishment by the opposition. Third-party subpoenas to past employers, medical providers and any other sources that might be probative of involuntariness, can provide important information concerning a parent’s reasons for a decrease in child support. Interrogatories, Requests for Documents and Requests for Admissions can narrow the issue and assist in obtaining information from litigants who claim that his or her impoverishment is voluntary. When faced with the impoverishment issue, a deposition of the opposing party is critical to determine the scope of information necessary to gather through subpoenas and possibly other witnesses.
Successfully proving voluntariness is the first step to persuading a court to impute income to a parent who is unemployed or underemployed. Ignoring this vital step can lead to a child support order that does not accurately reflect a parent’s ability to pay. Becoming familiar with the child support guidelines in your jurisdiction that are related to impoverishment, the factors a court may consider in determining voluntariness, identifying the impoverishment issue early in the case, conducting thorough discovery on the issue and effectively presenting this aspect of your case at trial will greatly enhance your client’s chances of receiving a child support award that reflects the opposition’s ability to pay.
[1] Other jurisdictions, including Wisconsin, have coined the term “shirking”, which means that the payor is intentionally avoiding his or her income in light of the support obligation. See Roelling v. Roelling, 146 Wis.2d 652, 431 N.W.2d 759 (Ct. App. 1988) for a discussion of the “shirking” exception to the general child support needs/ability to pay test.
[2] Rule 32(B)(5) ARJA. Indiana’s revised Child Support Guidelines, which become effective on January 1, 2020, includes a more expansive list of factors to be considered in determining potential income. Indiana Child Support Guidelines, Guideline 3(A)(3) provides as follows:
Unemployed, Underemployed and Potential Income. If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s assets, residence, employment and earnings history, occupational qualifications, educational attainment, literacy, age, health, criminal record or other employment barriers, prevailing job opportunities, and earnings levels in the community. If there is no employment and earnings history and no higher education or vocational training, the facts of the case may indicate that Weekly Gross Income be set at least at the federal minimum wage level, provided the resulting child support amount is set in such a manner that the obligor is not denied a means of self-support at a subsistence level.
[3] Gordon v. Gordon, 174 Md.App. 583, 923 A.2d 149 (2007); Stull v. Stull, 144 Md. App. 237, 797 A.2d 809 (2002).