Under New Hampshire law, child support is calculated through a formula known as the "guidelines." Problems can occur when one parent has decided to quit his/her job entirely or dramatically reduce their hours. Under these circumstances, strict application of the guidelines could result in an unfair support order. In order to protect the children, the child support statute allows a court to impute income to one parent based upon a finding of voluntary underemployment or unemployment. This means that the court will presume that the parent is earning money even though they are unemployed or underemployed and will use that imputed income in calculating a child support order.

In Stall and Stall (decided December 30, 2005) the father argued that the mother was voluntarily unemployed. The mother argued that she quit her job as a real estate broker to move to Maine to be closer to her children. After hearing that she last worked in May of 2004, and providing no documentation to support she was disabled due to depression, the trial court imputed income to her as if she was still working as a real estate broker earning $30,000.00 per year.

In the case of Rossino and Rossino (decided February 24, 2006) the husband, prior to the divorce, was involuntarily terminated from the police force. The Supreme Court held that the trial court should consider whether the husband was voluntarily underemployed or unemployed as a result of this involuntary termination. If so, the husband's police force wages, $67,000.00 per year, could be imputed to him.

Therefore, if there is a claim that one side is voluntarily underemployed or unemployed, that claim should be supported with sufficient evidence for the court to make its finding. This includes offering evidence of a parties' employment history to show their earning potential, evidence of why they lost their job and other evidence to show whether they are capable of full time work.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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