Virginia Code § 20-108.1 creates a rebuttable presumption that the courts shall order child support based on the applicable guidelines set forth under § 20-108.2. The guidelines take into account how much both parties earn and how much time they have with the child. When individuals find out that child support is largely based on how much they earn, i.e. how hard they work, there are many individuals that decide that they will no longer work as hard as they had in the past. Their hope is that by the time they have to provide proof of their income they will either have 1) no income, 2) a lower hourly rate, 3) or less hours/overtime. Essentially, attempting to shortchange their own child. I cannot stress this enough, these actions are risky and will generally not work. It will only serve to anger the judge and the person with whom they must co-parent.
Subsection § 20-108.1(B)(3) gives the court the power to impute income to a party that is voluntarily unemployed or underemployed. This means if a party decides to greatly limit how much they earn, in hopes of lowering their support obligation, the court has the authority to run the guidelines as if said party was earning income at their earning potential.
How Imputed Income Works
For example, if a military contractor earns approximately $100,000.00 a year and decides to quit his job to become a used cars salesman, then the court will run the guidelines as if he were still earning the $100,000.00 a year, despite now having no means of earning anywhere near that amount. If said individual does not find a way to get their better paying job back, the support arrears will build up fast. Furthermore, if they cannot get their old job back the court will not take pity on them and lower the support amount at a later date.
Of course leaving your job is not the only way one can be underemployed. There are many individuals in the Hampton Roads area that are military contractors.
How Imputed Income Works (Cont.)
We often see individuals that they reject overtime, or optional travel, in hopes of lowering the income that appears on their pay stubs. The courts are wise to these tactics, and so long as the proper evidence is provided, the court will order that they pay support as if they were still earning what they had earned on average in the past.
Of course, there are also individuals that never worked a day in their life and expect to continue this. While the court cannot force a party to get a job after having never worked, the court will most definitely lower the amount of child support, with the desire that said party will find employment. Still, the court will often note that because the person has not worked that their earning potential is very low, and the court will often only impute minimum wage. Currently the minimum wage in Virginia is $7.25. When plugging this figure into the guidelines, the court will impute this pay level at 40 hours a week, every week, which is approximately $1,255.00 a month.
Though, it is important to note that the party requesting the imputed income must to prove to the court how much the unemployed/underemployed party could earn, and this is not always an easy task. It should go without saying that you will need good evidence to prove that a party is voluntarily unemployed or underemployed. While this list is not exclusive, it is generally a good idea to present the court with the following: past pay stubs, tax returns, termination letters, training certificates, college diplomas, and medical records. Lastly, you may want to consult with your local attorney about using a vocational expert in court. It should be noted that these experts do not come cheap, and are not applicable in every case.
Good Faith Unemployment or Underemployment Defense
Of course the court does look at the cause of unemployment or under underemployment to see if the condition was caused for a good faith reason. If the court determines that they is a good faith cause to the situation, the court will not impute income to the party.
While there is no exclusive list of good faith reasons to be unemployed, the court will generally consider the following: if the party is in school with hopes of raising their earning potential, if the child is not of school age and there is no childcare service available, or if the party has a health condition that makes work impossible. It is important that you speak with your local family law attorney to determine what factors would be considered good faith reasons for being underemployed.
Virginia Child Support Attorneys
Give the family law attorneys with the John W. Lee, PC law firm a call if you have further questions concerning imputed income and your Virginia child support case today.