From the Client Files: Voluntary Unemployment to Avoid Child Support
Child support is a big deal. State and local governments go to great lengths to protect the “best interests” of children, especially in family law statutes. So it’s no surprise that just about every state has an “imputed income” provision in their child support guidelines.
Imputed income is simple — if a non-custodial parent decides to voluntarily become unemployed or underemployed in for the purpose of lowering his/her support responsibilities, the court can assume the income that he/she would have made and add it to its child support determination. The reason is also simple — to prevent unscrupulous people from cheating the system and to protect children from poverty.
It is always important to remember that child support payments are not for the benefit of the parent, but for the children. Often, children end up becoming pawns and innocent bystanders when parents fight over finances. Maybe if more parents thought about their children’s well-being there would be a little less acrimony in child support cases.
D.C. Code § 16-916.01(d)(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.
Va. Code § 20-108.1(H): In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. The order may permit the attendance of the vocational expert at the deposition of the person to be evaluated. The order shall specify the name and address of the expert, the scope of the evaluation, and shall fix the time for filing the report with the court and furnishing copies to the parties. The court may award costs or fees for the evaluation and the services of the expert at any time during the proceedings. The provisions of this section shall not preclude the applicability of any other rule or law.
Brody v. Brody, 16 Va. App. 649, 432 S.E.2d 20 (1993). In an initial proceeding for child support, the unemployed/underemployed parent must prove that his/her situation was not voluntary. Also, if childcare is available, a unilateral decision to stay at home is not sufficient to show that unemployment is involuntary. Finally, the court can impute income from employment recently and voluntarily terminated.
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