The nature of imputation of income for child support
As a family law and divorce attorney, I routinely encounter situations where I am forced to petition the Court “impute” income to an opposing party who lists a (seemingly) low monthly income on their financial affidavit.
Commonly, imputation of income issues arise when one party – immediately preceding a dissolution of marriage or modification of child support – abruptly changes jobs or has a sudden drop in earnings.
Please note that this article will focus on imputation of income for child support – although the provisions are substantially the same for spousal support as well.
Relevant Statute, Fla. Stat. §61.30(2)(b)
Under Fla. Stat. §61.30(2)(b), monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the Court to be voluntary on the parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances which the parent has no control.
In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based on his or her recent work history, occupational qualifications, and prevailing earnings in the community.
The Court may refuse to impute income to a parent if the Court finds it necessary for that parent to stay home with the child(ren) who are the subject of the child support calculations.
I have listed some of the inherent issues that the Court must consider when one parent requests the Court to impute income to another parent.
Burden of Proof
The parent claiming that the other parent is voluntarily unemployed bears the burden of proof.
Two Step Analysis
Imputing income is a two step analysis:
- The determination of whether the parent’s underemployment was voluntary
- The calculation of impute income based on competent, substantial evidence presented at an evidentiary hearing
With regards to competent, substantial evidence, the Court will looks towards, the current job market, the party’s most recent work history, occupational qualifications, and prevailing earnings level in the local community.
The Court will determine whether the parent’s underemployment resulted from the parent’s pursuit of his/her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formally received (i.e. a Doctor who suddenly decides he/she wishes to leave private practice to work at the Humane Society or a senior mechanic who claims he/she can’t find employment).
Of note, imputation must be within levels previously earned.
The Court will not impute income commensurate with a 20 year attorney to a parent who (although received his/her law degree 20 years ago) has never practiced law.
Additionally, the Court may not impute income relying on records that are more than 5 years old at the time of the hearing.
If there is evidence of regular, periodic payments to one parent, the Court can impute income to that parent for purposes of support hearings.
A common example is the Court imputing income to a parent based on the rental value of a home owned by his/her grandparents who allow the parent to live in such home rent free.
Absent other findings, every parent should be able to work even if they have previously been unemployed during the marriage. At a minimum, the Court will impute income of the median income of year-round full-time workers as derived from the US Bureau of Census.
A full-time year round employee earns approximately $41,036.00 per year.
The moving party still bears the burden of presenting competent, substantial evidence that the parent is employable (i.e. the other parent does not have a physical or mental incapacity and/or does not have to stay at home with the children who are the subject of the child support calculations).
As seeking an imputation of income can be complicated (and sometimes highly litigious), it is crucial you retain a trial attorney at Lyons, Snyder & Collin familiar with divorce, alimony and support. If you have any questions concerning the imputation of income please contact divorce attorneys Sean Collin or Philip Snyder for a free consultation.