Calculations of child support and alimony are seldom set in stone—they're meant to be adjusted as circumstances change. If you get a new job with better pay or your ex-spouse remarries, the court can review your relative incomes and change the amount of support being paid. What happens, however, if your ex-spouse decides to quit his or her job in order to avoid paying you support?
Voluntary Unemployment or Underemployment
The courts generally call such maneuvers "purposeful unemployment or underemployment," depending on the circumstances. Sometimes the actions are clearly obvious. For example, if your spouse was a highly paid hospitalist and he or she suddenly decides to take a leave of absence in order to go sailing for a year, that's pretty purposeful unemployment. The same goes if your ex-spouse was a successful entrepreneur with a thriving private business who suddenly decided to close up shop.
There are far sneakier ways that someone can become voluntarily unemployed or underemployed, however:
- Your ex might quit his or her long-held position and take a job working for a friend or relative at a dramatically reduced rate (while secretly collecting part of his or her paycheck off the books).
- An ex might suddenly cease working overtime, even though it has been a regular addition to his or her income and is still being offered by the employer.
- Your ex may remarry and decide to let the wealthier new spouse provide all of his or her support.
- Your ex may suddenly decide to make a career change and announce that he or she is quitting work and going back to school or starting a fledgling business.
- He or she may decide to leave a well-paying job in a large practice or bigger city and move to a small practice or small town, taking a dramatic cut in pay.
- An ex might suddenly claim to have developed a disability that prevents him or her from working as much as before, or at all.
Since the courts tend to frown on people who try to wiggle out of support obligations, your ex-spouse is unlikely to admit that the situation is voluntary. That means that you will be placed in the position of proving it, which may be difficult. It will likely require some investigation on the part of your attorney into your spouse's finances, work history, and possibly even his or her medical history in order to prove your case.
Imputed Income for Support
Once all the investigation is done, the court will hear your case. Your ex-spouse will have a chance to mount a defense. Assuming that you're successful and the court decides that your ex's reduced income is, in fact, voluntary, the court will then use your ex's imputed income in order to determine how much support is to be paid.
Imputed income is based on several different factors. Your ex's age, education, previous work experience, and earnings record are likely to be part of the calculation. The employment opportunities available in your area to someone with your ex's job skills are also an indicator of what he or she could be earning. His or her financial records may also give the judge an idea of how much hidden income he or she might have coming from somewhere.
Once the judge determines a figure, that's the income that the court will use as what your spouse could be earning if he or she wanted to do so. Child support and/or spousal support will then be redetermined using that figure.
Penalties for Refusal
If your ex-spouse still insists that he or she doesn't have the money for support and can't earn it, you will have all the options available to you that anyone else has when faced with an uncooperative ex:
- You can request that his or her tax returns are taken.
- You can ask the courts to garnish any known wages, up to the amount of the support, regardless of whether that leaves him or her with anything left over.
- You can ask the courts to suspend his or her occupational license.
- You can ask the courts to force the sale of personal property in order to pay the support.
- You can ask the court to deny your ex a driver's license or passport.
If all else fails, the courts can also put your ex in jail. That's generally the least useful option, but it sometimes becomes necessary in these sorts of situations in order to convince a particularly determined ex-spouse to relent.
For more information on your specific situation, discuss the case with a family law lawyer in your area, like one from Baudler, Maus, Forman, Kritzer & Wagner, LLP. Each case is unique and presents its own challenges, so legal advice is paramount.