Underemployed ex-spouse and child support


#1

Hi - I really love this forum…many thanks for your service to this community!

My ex-spouse is an independent contractor and averages about 10 hours/week of billable work as a government/corporate proposal writer. She is a contractor by choice and there is nothing preventing her from finding work as a full-time salaried W-2 employee. She is a college graduate with a certificate in proposal writing - with 2 years of recent part-time work experience in this area. All of my children are in grade school - kindergarten and higher.

I intend on modifying my child support agreement by asking the court to impute a full-time wage based on her education and experience. My questions:

  1. Does my ex have a legal responsibility to commit a full-time wage to the child support worksheet? If no, why not and under what circumstances?
  2. What will the courts typically do after the first hearing? Will they give my ex a fixed time to find full time work and rehear the case after, for example, a 6 month waiting period?

Thanks!


#2

A court will only impute income to your ex if the judge finds that she is intentionally suppressing her income in bad faith. Bad faith meaning she’s earning less for the purposes of getting more child support, or in other cases to pay less CS. If she has been working at a higher rate of income in the past, then you will need to convince the judge that she is now earning less money on purpose. If a judge agrees with you, he will not order her to get a better job. Instead, he would calculate child support using the income which she would have been earning if she hadn’t been suppressing her income (often this is whatever salary she used to earn in good faith). It would be up to her however she wanted to handle that moving forward since you would then be paying less in CS. If she has always earned less than her income potential, then you may have a harder time getting the court to impute income to her, since it’s not a recent thing that she’s doing to try to get more money from you. The bad faith element is the key to success or failure.

I’m very happy that you have found this forum to be a useful resource. You are welcome to any advice I can provide on the forum. Good luck to you!


#3

Thanks for the quick response Crystal - that was very helpful!

Back to my original question: does she have a legal obligation to commit a full-time (40 hour/week) wage in the child support worksheet? She’s not intentionally suppressing her income in bad faith to avoid CS - she simply doesn’t want to work full-time and doesn’t have a recent work history of doing so.

Some context: she worked when we married but became a stay-at-home mom for 8 years once we started having children. She then changed careers after we separated/divorced 3 years ago and has been working part-time as an independent contractor ever since. We have the kids 50-50 and she doesn’t want to work when she has physical custody of the children. It’s nobel - but a luxury most of us don’t have…including me.

Thanks again in advance - you guys are great!


#4

Unfortunately, if she has a history of always working part-time, sporadically, etc., it will be very difficult to show bad faith as you are aware. While I can never predict what a judge will do in any one case, under these circumstances I don’t believe that a judge would calculate her child support at the equivalent of what she would earn at a full-time (40 hours) job. Additionally, she has no legal obligation to calculate her own income under that full-time rate. She must use her actual income numbers (or an average if she makes different amounts each month), not one based on hours that she doesn’t work.

Best of luck to you, and feel free to post other questions as they arise. I am happy to help.


#5

Sigh…as you can imagine it’s not the answer I was looking for. That said - it’s the system we have so I suppose there’s not much I can do about it. I’ll keep y’all in mind when I take this back to court.

Thanks!


#6

I can understand your frustration. You are welcome to come back in the future should new issues arise. Good luck to you.