- Dawn M. Kelliher, Esq.
DON’T QUIT YOUR DAY JOB: Imputed Income as it Applies to Voluntary Impoverishment
Often, the breakdown of a marriage and subsequent divorce is accompanied by obligations to pay child support. Child support is often a hotly debated point of contention, both in and out of court, and can lead to emotional and financial turmoil for both parties. Courts apply Child Support Guidelines and determine which parent is the obligor (paying parent) and which one is the non-obligor (receiving parent). In most cases, the obligor parent is the non-custodial parent. Pursuant to the Child Support Guidelines, the obligor is required to pay an amount commensurate with his or her income. Oftentimes, the obligor parent believes this amount is too high and, in some cases, believes that becoming underemployed or unemployed will reduce his or her child support obligation. This is commonly referred to as voluntary impoverishment. However, this is not recommended, as the courts have incorporated the practice of imputing income to payor parents who have been found to be voluntarily underemployed or unemployed for the purposes of avoiding child support obligations.
Courts do not recognize a presumption that a reduction in salary is a purposeful attempt to avoid paying child support obligations. Thus, the burden is on the non-obligor parent to prove that the obligor parent is voluntarily under- or unemployed. The court will not impute income to a parent who is involuntarily under- or unemployed because punishing people who have been laid off is in contravention to public policy. Additionally, a recent Massachusetts Appeals Court decision added another provision to the attribution of income when the court held that income cannot be imputed to an under- or unemployed obligor parent unless the court makes a factual finding that the spouse is not engaged in a reasonable job search.
However, a parent’s obligation to his or her children is a well-established bulwark of family law in every state. Income attribution is appropriate in cases where an obligor parent voluntarily reduces their salary by becoming under- or unemployed, notwithstanding their ability and capacity to earn a higher income through reasonable effort. In these cases, the trial judge will not use actual income but the earning capacity of the obligor parent. Judges determine earning capacity using a totality of the circumstances calculation. Factors considered include previous work history and salary, education, training, age, current job market, and efforts to secure employment. Wide discretion is given to the trial judges through statute and case law that permit them to make assumptions based on these factors and their decisions will only be vacated upon abuse of discretion.
What about an obligor spouse that is voluntarily impoverished because of a good faith reason, such as returning to school, retirement, staying home to raise small children, wanting a less stressful environment, or just plain happiness? Even in these cases, the decision to change positions or become unemployed is not left to the sole discretion of the obligor spouse. Instead, courts have consistently held that those reasons “must be balanced against his [or her] obligations to support his [or her] former family.” Courts will not punish children for the decisions of the obligor parent. The exception to this is when an obligor parent is suffering from a physical or mental disability making full-time work virtually impossible. In these cases, courts will not impute income.
Obligor parents who are trying to avoid paying child support should understand that taking action to become (and remain) voluntarily impoverished will put the obligor parent in a more precarious financial situation. Courts will not reduce their child support obligations. The result is a lower paying job or no job at all with the same child support obligations. If an obligor parent does not put the best interests of the child first, the courts will compel him or her to do so. The message from the courts is clear: the rights of the child are paramount.
The Massachusetts state laws governing child support are: M.G.L. ch. 19, 208, 209, 209c.