What if your spouse is unemployed, underemployed, or has voluntarily reduced his/her income?

A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. Family Code section 4053(a).

FC §4058(b) provides: “the Court may in it’s discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.” (note: the Court is not required to consider the child’s best interest in determining spousal support)

There are three common situations in which this arises:
1) The supported party has been the primary caregiver of the minor children and has not worked for a substantial period of time during the marriage.

This situation can vary substantially from case to case depending on all the factors the court considers relevant to the parent’s circumstances and station in life: (1) How long the parent was out of the job market due to child-rearing and domestic duties; (2) retraining or further education needed to re-enter the job market; (3) for spousal support – the extent to which the supported party contributed to the education, training and/or career of the supporting spouse during marriage.

The party requesting imputation of income has to show that the other party has both the ability and opportunity to earn the imputed income consistent with the best interest of the children. Marriage of Bardzik. This may require a vocational evaluation.

The party opposing the motion can argue that imputing income would not be in the best interest of the minor children, such as when a child has special needs. However, a parent’s preference to stay home with the children is generally not a valid reason to avoid that parent’s obligation to support his or her children under FC 4053(a).

2) The supporting party loses their job or voluntarily reduces their income.

The Court has discretion to impute income at the parent’s earning capacity under FC 4058(b) as discussed above. A party can be considered to be underemployed if he/she voluntarily changes employment, even if such a change is made to facilitate custodial arrangement. (See Marriage of Barth, finding that husband was woefully and purposefully underemployed. In rejecting husband’s argument that vocational expert failed to consider his custodial arrangement, the Court noted that custody arrangements sometimes have to adjust to meet a parent’s work requirements. )

3) The supporting party continues working fulltime at a present job, but limits or does not accept opportunity to work overtime hours previously worked during the marriage.

This is the most difficult situation in which to impute income. Imputed income should not be based on extraordinary work regimen, but rather on an objectively reasonable work regimen. The general rule is that a 40 hour work week is considered a reasonable work regimen. However, the California Supreme Court has determined that in certain occupations a normal work week necessarily will require in excess of 40 hours or occasional Overtime and thus may be considered reasonable under the circumstances. In re Marriage of Simpson (1992) 4 Cal. 4th 225, 234-236.

If the Court does not impute at least a reasonable amount of overtime to a party who typically worked overtime during the marriage, then request an Ostler/Smith Order whereby the Court will set an order using base salary coupled with an additional order for a percentage of any overtime/bonus pay.

Do you have further questions that concern the imputation of income as it relates to child and spousal support? Feel free to contact our office to schedule a consultation to further understand this area of family law. The Law Office of Family Law Specialist Richard E. Bawden also handles legal issues regarding custody, adoption, annulment, collaborative divorce, divorce, domestic violence, litigation, legal separation, mediation, paternity and step-parent adoptions as well as pre-marital and post-marital agreements. Dial 909.792.0222 or email us at [email protected] You might also want to get more information at our website: The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.

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