In calculating child support, a court must first determine each party’s gross monthly income. If a party is unemployed at the time the support is calculated, the trial court may inquire as to the reasons behind the unemployment. Where a party is voluntarily underemployed or unemployed, the court will calculate child support based on what the person is capable of earning, not what he or she is actually earning. For example, if a person is earning $50,000 per year, but is capable of earning $100,000 per year, the court will calculate child support using $100,000 per year.
Courts have consistently struggled with the concept of voluntary versus involuntary unemployment. In some cases, a party that is involuntarily terminated from a job for poor performance or other reasons may not be considered voluntarily unemployed. However a party who voluntarily quits a position for no justifiable reason may be considered voluntarily unemployed.
In the recent case of In the matter of Muller and Muller, the trial court was confronted with a husband who was terminated by his employer for poor performance. The trial court imputed income to the husband despite the fact that the husband argued that his separation from his employment was involuntary. The trial court considered the reasons behind the termination and discovered that the husband had intentionally sabotaged his employment so that he would be fired and therefore have less money to pay child support. Muller stands for the proposition that just because a party is involuntarily terminated does not mean they are not voluntarily unemployed. Reviewing a party’s employment records as well as testimony from the spouse and co-workers as to the party’s motivations and reasons for the termination may be relevant in showing that the involuntary termination was willful sabotage of employment.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].