Monterey California Family Law -- Imputed Income, When the Other Party is NOT Making What They Can

Monterey California Divorce Lawyer
Monterey California Child Custody Attorney
Monterey California Family Law Attorney
Monterey California Child Support Attorney

IMPUTING INCOME FOR SUPPORT

Often times as a family law attorney I am asked what happens if the other parent is working, but not working full time or to their potential?  In other words, what happens when someone is trying to artificially lower their income in order to pay lower child support?  The short answer is that the Court can impute income to that party, which means that although a party is not actually earning an income, the Court will use income figures as if the party were making the income the party has the ability to make.

How does this work?

Family Code §4053 sets forth principles to be followed by the Court in implementation of statewide uniform guidelines for child support.  Of importance in the instant matter are the following sections:

(a)    A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.

(b)   Both parents are mutually responsible for the support of their children.

(c)    The guideline takes into account each parent’s actual income and level of responsibility for the children.

(d)   Each parent should pay for the support of the children according to his or her ability. 

Family Code §4058 defines annual gross income of the parents.  Of importance in the instant matter is the following section:

            (b) The Court may, in its discretion, consider the earning capacity of a parent in lieu of                  the parent’s income, consistent with the best interests of the children. 

In order to impute income to a non-working or under-working parent for purposes of calculating support, a three-prong test exists before a capacity to earn standard may be applied.  Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [See: In Re Marriage of Regnery (1989); 214 Cal. App. 3d 1367; and In Re Marriage of Ilas (1993); 12 Cal. App. 4^th 1630].  However, MANY Courts discarded the second prong, and made an assumption or obligation of a party’s willingness to work.  Thus, it is in reality a two-prong test. 

It must be noted that in applying the capacity to earn standard, the Courts are permitted to do so when dealing with child support when it is consistent with the child or children’s best interests.  [In Re Marriage of Ilas (1993); 12 Cal. App 4th 1639, 1636]  This discretion is granted by looking at Family Code §4058(b) which allows the Court to substitute earning capacity for actual income in applying the guideline formula.  Although, Family Code §4053 states that the Courts shall adhere to the principle that guidelines take into account each parent’s “actual” income, that section does not prescribe hard and fast rules it only denominates a set of principles.  Further, Family Code §4053(d) states that each parent should pay for the support of the children “according to his or her ability.”  Read together, these two statutes ensure that, while actual income must be considered, so must the parent’s ability to earn.  Family Code §4058, actuates both of these principles by allowing the Court to substitute earning capacity for actual earnings consistent with the best interest of the child.  [See In Re Marriage of LaBass (1997); 56 Cal. App 4th 1331, 1337]

The Courts have also reasoned that a parent does NOT have the right to divest himself or herself of his or her earning ability at the expense of minor children.  When a parent decides not to seek employment to the best of his or her ability, the Court must retain discretion to impute income otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the employed parent.  [Citing: In Re Marriage of Padilla (1995), 38 Cal. App. 4th 1212]

Additionally, the Court in LaBass noted that while most cases deal with imputation of income to the supporting spouse, there is NO support in case law or code which support a claim that the case law dealing with imputation of income to a supporting spouse does not apply to the “care giver” whose refusal to realize her earning potential is motivated by “her perception of ‘the best interests of the children.’”  [Emphasis NOT added] [LaBass, at 1340] Rather, Family Code §4053(b) states unequivocally that both parents are equally responsible for the support of their children.  Accordingly, Family Code §4058(b) makes no distinction between custodial and non-custodial parents. [Id.]

Why Don't I Get to See My Kids?

Daniel S. Williams -- Monterey Divorce and Child Custody Attorney

Over the last ten years, one of the most common questions I get is along the lines of "how much will I get to see my kids?" or "will I get to be able to see my kids more than my ex?"

Answers to that question are hard to give because its the wrong question to ask.  The correct question to ask is "how often will our children be able to see each of us?"  Now, while going through a custody process, that may sound altruistic or corny, but the fact of the matter is custody and visitation awards are not about how much time a parent gets to spend with their child or children, but how much time the child gets to spend with both parents.  The reason in logic is simple, it is the child who benefits from and needs the nurturing and care of both parents.

I can not stress enough the importance of the difference between looking at this from the often but innocently incorrect perspective of how much time does a parent get to see their child or children, and the logical and legally supported correct perspective of how much time does the child get to see each parent.  I am reminded of a trial I once had where I was successful in preventing a move-away case which by all respects given the facts was an uphill battle.  My client was the non-custodial parent and only saw the children every other weekend and during some but not all of the holidays from their school.  He worked out of town and had to travel a lot.  The mother was working for a company that offered her a big promotion and she would be moving to New York.  She requested a move-away.

Pursuant to California Family Code Section 7501(a) which states "A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of a child."  What does this mean in laypersons terms. Basically, that the parent with primary physical custody can relocate with a child so long as it is done for a reason that is other than to disrupt the visitation of the non-custodial parent. This came from a case referred to as In Re Marriage of Burgess (1996) 12 CA 4th 473, in which the Supreme Court of California stated that once the "moving" custodial parent made a threshold showing that the move was nor for the purpose of frustrating the "remaining" parent's visitation and was for any proper purpuse, the remaining parent then had to prove that the move would actually be detrimental to the child.  Now since that decision, the Courts have what I call a split of authority and the burden of the remaining parent is not so high.  The Courts will generally look to see if the purpose is legitimate and the bests interest of the child are met.  Now how does this relate to the question at hand.  Simple.

When we were at trial, thousands of thousands of dollars had been spent on psychological examinations, interviews with both parents, depositions, and other discovery such as and down to which school was better and if the walk to school in the new location versus the old location was more dangerous.

In closing argument I was very nervous for my client because the law and the fact that he traveled was very stacked against him.  However, I can not recall the exact way it came to me, but I sat in my office thinking, gee these are both great parents, its a shame they ever got divorced.  I really thought the mother was an outstanding parent, and I thought the same of my client. By all accounts of what I had seen from the child, it appeared that the child was a great kid too.  I then realized that the reason the child was so great was because the kid had to outstanding parents who did not fight or haggle, they just could not live with each other.  One parent liked hot, the other parent liked cold.  One parent liked up, the other parent liked down, for a lack of better terms.  Then I realized, you take this straight A student with an outstanding record on everything and add to the fact "what if one of there parents were deceased or otherwise out of the picture, would the kids still be so well adjusted?"  I really couldn't answer that question.  That's when I realized that if the move-away were denied and the mother moved anyway the child was really going to miss out on a great parent.  I wondered to myself, if the move-away was denied, would the mother choose the job over the child?  That is when I asked the judge to put my client back on the stand before closing arguments and I asked my client one simple question.  "Sir, what is the hardest thing for you in this case?"  My client responded, "Well, I know the cards are stacked against me, but if the move-away is denied, I know our kids is really going to miss the mother, and I will just be heart-broken to see our child go through that."

That was it, a simple statement.  Counsel and I then made our closing arguments and the judge took a short recess to render a decision. When the Judge came out, he stated that all through the trial he felt his hands were tied and he was going to order the move away.  But when he heard my client say what he said above, he realized, this was a parent who cared more about what the child would go through then what either of the parents would go through.  The move-away was denied based on the grounds that the child would not benefit from seeing both parents at the rate of the current schedule.

Accordingly, next time you think about why you do not get to see your kids as much as you want or why the other parent gets to see them more, the real question you should be asking is, how much is our child or children benefiting from seeing both of us.