Basing Child Support or Spousal Maintenance on Earning Capacity
Basing Child Support or Spousal
Maintenance on Earning Capacity
By Maury D. Beaulier, Esq.
question is often raised, "what do I do if the other party quits their job?
Will he/she have to pay support?"
Imputation of income is the harsh
result where the Court requires a party to pay spousal maintenance or (child
support) based on earning capacity rather than true income.
For example, if one party quits a
job and reduces his/her income voluntarily or if a party fails to seek gainful
employment though able-bodied, the Court may base that person’s income on
earning capacity. Oftentimes, the parson’s prior work history plays a pivotal
role in determining what they have the ability to earn.
To award spousal maintenance
("alimony") based on earning capacity, the court must make specific findings
that an obligor is underemployed in "bad faith." In fact, Minnesota Statutes §
518.51, Subd. 5B(d) plainly states that "a parent is not
considered voluntarily unemployed or underemployed upon a showing by the parent
that the unemployment or underemployment:
represents a bona fide
career change that outweighs the adverse effect of that parent's diminished
income on the child."
- is temporary and will
ultimately lead to an increase in income; or
To award child support
based on earning capacity, no finding of bad faith is necessary. The Court need
only find that the obligor has a greater earning capacity and is voluntarily
self-limiting his or income and it is the "best interest" of the minor child(ren)
to impute income.
This result is particularly harsh since it is often
hard to change the Court's perception that income is being self-limited in
subsequent proceedings where the standard for a reduction in support is whether
a substantial change in circumstance has occurred making the previous support
obligation unreasonable or unfair. .
Evidence that may be presented to
demonstrate "bad faith" or earning capacity include:
- Past Income information;
- Past employment history;
- Educational history;
- Documents or awards related
to education or work achievements;
- Documents demonstrating that
previous employment was voluntarily terminated.
Evidence that may be presented
to rebut allegations that a person is self-limiting his or her income in "bad
- Documents demonstrating that
the termination of prior employment was involuntary (eg. Documents
indicating that the person was fired or was required to quit for medical
- Any documentation of efforts
to seek substitute employment (eg. Job applications, rejection letters,
- Documentation that job
skills are outdated for a job similar to the one that was terminated.
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