When determining child and spousal support in divorce, judges are required to consider multiple factors. A big one is both parties’ incomes. Another factor is something called “imputed income.” That refers to a person’s earning potential.
If this wasn’t considered, a person could conceivably get out of paying support by choosing to remain “underemployed” so they earn enough to get by but not enough to afford support. Conversely, a person with a relatively low-paying or part-time job might not bother to look for higher-paying work they’d be qualified for because it would just mean an end to or lessening of their support. That’s referred to as “sandbagging.”
Most people don’t think this way. They want to maximize their earning potential, even if it means not having to rely on their ex financially – and in part they don’t want to rely on them. However, sandbagging happens – and judges generally can spot it. If your ex is doing that, it’s crucial to make your case and seek a modification so that the support you’re receiving or paying is based on your ex’s imputed income if that’s different from their actual income.
What factors does a judge consider?
Determining someone’s imputed income isn’t an exact science. It’s based on their education, job experience and income history, age, skills and the job market in their field. If they are unemployed or underemployed, they may need to produce evidence that they’re seriously looking for an appropriate job.
Of course, that doesn’t mean a divorced parent with primary custody of a child will be expected to find a job with a six-figure income that will require a 60- to 80-hour workweek and regular travel if the other parent is earning enough to contribute to their support. Parental and other obligations are taken into consideration.
Each situation is highly unique. If someone has been out of the workforce for years raising a child, judges understand that they often can’t jump back in and be able to support themselves and their child immediately. However, if that child is now finishing high school, that stay-at-home parent will likely be expected to go back to work unless their health or other things make that effort impossible or otherwise unreasonable.
Certainly, it’s best when divorcing couples can negotiate their own support agreements, with the help of their legal advisors, rather than having to put the decision in a judge’s hands. However, if judicial intervention cannot be avoided, it’s crucial to be able to make a strong case.