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When Should a California Family Law Court Consider Earning Potential?


When I started law school 26 years ago, I had no idea what the word “impute” means. Maybe that explains my SAT scores.

Anyway, a law professor explained that the word means “to bring into the reckoning”. I am not sure if that’s the best way to describe the word, but in family law, we use the word “impute” to describe the process of calculating spousal or child support based on what a person is capable of earning — not what he or she is actually earning.

The process of imputing income, though, is difficult for the “imputer” — but not impossible. In spousal support cases, there needs to be proof of what type of work the unemployed or underemployed person is capable of doing; and further proof that there exists openings for that type of work in the region where that person lives. In child support cases, these two factors are the same: the person’s skills; and jobs that match those skills. In addition, however, the judge has to find that imputing income to the parent in question would be in the best interests of the child or children involved.

There are several appeals court cases in California that discuss imputing income. One case says that to prove job openings, it is perfectly acceptable to bring to court help wanted ads from the newspaper. Of course, in today’s world, you could probably print out internet classified postings. Another case says that if a person deliberately quits a job, you cannot impute the income the person was earning before the job resignation, unless there is evidence that the person could get the job back.

What if the person uses bad judgment and gets fired? Obviously, that person cannot get the job back, but courts are not supposed to “blame” the individual and impute income, even if the dismissal was based on poor judgment or a bad attitude. But in other matters, where it can be shown that a person tried to get fired and did, income will be imputed even though it is not clear how a person who has committed such a wrong could get the job back.

In spousal support matters, case law says that you don’t have to keep working after the age of 65 just to pay your former spouse. It is thus inappropriate to figure out what an unemployed person over the age of 65 could be making if that person returned to the workforce and then impute that income to that person. (But income from retirement will still be considered.) Also, if you decide you like to work and stay past the standard retirement age, the judge has to consider what you’re making.

Sometimes, imputing income is difficult because the issue of child custody is at play. For example, parent One wants to show that parent Two is mentally unfit or physically infirm. If parent One succeeds, he or she might get the majority of the custodial time, but where does that leave imputation? How do you show that someone who is mentally unfit could do a particular job?

If all of this doesn’t make your head spin, consider these other issues. Even if a person has the ability to do work and there are job openings that would be perfect, how much income should be imputed? How do we know how much the job would pay? Of course, sometimes the help wanted ads will mention a wage or a salary; but many times they won’t.

You also have to look at the burden of proof. This, in turn, depends on whether the proceeding for support is to establish an obligation, or to modify one.

In the old days, a judge might just assume that an unemployed person could at least earn minimum wage. But now, the conventional wisdom is that even imputation of a low wage requires some degree of proof.

Finally, at the end of the day, even if a court may impute income to someone, it is in the court’s discretion not to do so.

The post When Should a California Family Law Court Consider Earning Potential? appeared first on Andy Cook Law.

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