Child Support

Is Your Spouse "Underemployed", Dogging It or Unemployed?

                                                                                       

Determining "Potential Income" of an Unemployed or Underemployed Parent

 

Is your spouse "voluntarily impoverishing" himself, or herself? Is a parent “coasting” during the divorce by going to school or by not working at all?  If a Court finds that a parent is "voluntarily impoverished", the Court can attribute a "potential income" to that parent, and base child support on the amount of the "potential income". What will a Court look at to decide if this is the situation?  Here are some of the factors:

 

Age;

Mental and physical conditions

Assets;

Educational background, special training or skills;

Prior earnings;

Efforts to find and retain employment;

The status of the job market in the area where the parent lives;

Actual income from any source; and

Any other factor bearing on the parent's ability to obtain funds to pay child support.

How Much?

 

Once a court has determined that a parent is voluntarily impoverished, the court must then determine the amount of "potential income" to attribute to that parent for purposes of making the child support calculation.

Potential Income May Not Be Attributed to Some Parents

 

A Parent unable to work because of a physical or mental disability; or

 

A Parent who Is caring for a child under the age of 2 years for whom the parents are jointly and severally responsible. (So the attorney mother who was earning $100,000.00 before the child was born and has decided to stay at home, cannot be hit with a $100,000 income until after the child reaches 2 years of age).

Must There Be An Intention to Avoid Child support?

 

The Maryland courts have ruled that a finding of "intent" to avoid child support obligations is not required for a Court to determine that a parent is "voluntarily" impoverished.  If a parent has chosen a life of poverty for religious or other reasons, it does not affect that parent's obligation to pay child support. 

Incarceration

 

Absent evidence that a parent's incarceration involved the deliberate design to avoid payment of child support, and if there are no assets from which to pay a child support obligation, a court will not attribute "potential income" to an incarcerated parent, although each case must be considered on its particular facts.

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