When Is It Appropriate For A Court To Assign or Impute A Wage To A Parent Or Spouse For Purposes of Calculating Child Support Or Spousal Support?
Anytime a family law case involves the issues of child or spousal support and one party either unemployed or underemployed (i.e. not working to their full potential), the Family Court has the option to assign or impute a wage to that party. This concept is known as “Imputing Income” or assigning a party income up to their “earning capacity” and it can be a very useful tool when setting child support, spousal support or both.
An often-cited case involving the rule governing the imputation of income is In re Marriage of Eggers, (Civ. No. G034027; Ct. App., 4th Dist., Div. 3. 7/28/05.) This case held that in order to impute income or set a party’s wage to their earning capacity under Family Code §4058(b), the court must find such party has the (1) ability to work, (2) willingness to work, and (3) opportunity to work.
Practically speaking, this means that in order to assign a wage to a party, the opposing party must search job posting and prove to the Court that the parent or spouse has the “ability to work” in such position (i.e. they are qualified), the parent or spouse has the “willingness to work” (i.e. the spouse can actually perform the work) and the “opportunity to work” (i.e. the job is available).
Unless all three elements of this test are met, the Court will not assign the other party such wage. Keep in mind that there are many other factors the courts consider when setting child support or spousal support.
If you find yourself in a situation where either spousal support or child support is an issue, be sure to contact Wilkinson & Finkbeiner, LLP for a private consultation to discuss the appropriate amount of support in your case.