Imputing Earning Capacity for Child Support, Alimony, Equitable Distribution, and Attorney’s Fees Issues
It’s a common problem in child custody and divorce cases. One party is underemployed or unemployed, often for a long time. They may indicate they’re unable to get a job because of their child’s schedule. They’re insistent that minimum wage is their only option for income. At the same time, you’re working hard and feel like you’re being penalized in court. It doesn’t have to be this way.
The law in Georgia allows for one party’s income to be imputed to them. This means they determine the other party at least have income consistent with their earning capacity. It’s extremely important for issues of child support, alimony, an award of attorney’s fees, and equitable distribution of property. Even child custody decisions can be dependent on what each party’s income is found to be.
What Happens Next?
If your former partner has been a stay at home parent or working only a part-time job for years living off your wages, how do you prove it? That’s where having a competent and experienced attorney is critical.
For example, a stay at home parent with a college degree can get a job around $30,000 per year even if they have not worked for a while. This can be proven without the use of an expert witness through the Bureau of Labor Statistics (BLS) numbers. It’s public record, admissible as an exception to the hearsay rule, and it tells us the qualifications necessary, compensation, future advancement, and a host of other information. This information is sometimes ignored in cases because of the belief that you need an expert witness to make the information admissible. That’s not the case.
However, if it’s important enough, we may also make use of a vocational expert. We can even use the testimony of their supervisor if they’re underemployed. As an example, in one case, the former wife was a salesperson for Caribbean vacations. On her Facebook page, she shared pictures with captions such as “hardly working.” She claimed she was only able to earn $16,000 per year.
We deposed her supervisor who testified enthusiastically that the wife was a wonderful salesperson with great skills. What was the wife’s attorney going to do? Cross-examine the witness to prove that her client was an awful salesperson? Of course not.
At court, we used this information to contest her demand for 50% of his income in alimony, for child support based only upon $16,000 a year in income, and that she was unable to afford her own attorney’s fees. The result had the judge shaking her head. We may have saved more than $100,000 for our client by challenging her claim of income.
Get the Right Attorney on Your Side
If you’re in a case where a party is underemployed, or not employed at all, you can challenge their earning capacity and impute income to them. Even if they claim they’re a stay at home parent or unable to work full-time due to the children’s schedule. How you go about it will vary from case to case, but a good child custody or divorce attorney will be able to tell you how to get started.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com