Voluntary Unemployment and Underemployment

I guess Daniel got up on the wrong side of the bed yesterday. Or maybe he’s just generally a grumpy person. But I didn’t know that when he asked a question about child support on an alimony thread on Alabama Divorce Questions yesterday.

After reading the description about how alimony can change if there’s a material change in circumstances, Daniel asked if that applies to child support as well. I said that child support is designed to be dynamic, to go up and down as Mom’s and Dads’ income changes. Daniel’s snappy comeback was “Somehow, I sort of doubt I can just quit my job, join the Peace Corps, send my ex-wife and kids a postcard from Africa, and not suffer some sort of ramifications.”

Daniel’s quite right about that. The principle he’s describing is voluntarily unemployment and underemployment. In Alabama, the court has discretion to find that one or both the parents is voluntarily unemployed or voluntarily underemployed. The reasons for that are varied and difficult to list exhaustively, but Daniel’s idea about quitting his job and joining the Peace Corps certainly qualifies, as do a host of less creative and dramatic decisions:

  • Making a decision to refuse overtime after a long history of significant overtime work
  • Deciding to leave a lucrative big-city professional practice and moving to a amall town, with an accompanying drop in income
  • Marrying a wealthy spouse and deciding to stay home to become a homemaker.

One case where the court found the loss of a job not to be voluntary was that of Winfrey v. Winfrey, 602 So.2d 904 (Ala. Civ. App. 1992). The husband, a truck driver, had been terminated 10 days prior to the parties’ divorce trial after refusing an assignment. The court accepted his explanation, however, that he had been on the road 13 of the last 15 days, that he was exhausted, and that he had once had a wreck under similar conditions.

The judge has considerable discretion about when to find that one or both the parents is choosing to make less money. That discretion ends, however, as soon as the judge estimates (or “imputes”) the income the parent is actually capable of making.

Once the judge has determined that one of the parents is voluntarily unemployed or underemployed, the law is quite clear about what happens next. The court shall (that is, no discretion) estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.

And that means child support form CS-42, application of the guidelines, the works. It’s reversible error for a judge to find one of the parents to be voluntarily unremployed or underemployed and then juat to set the child support. Herboso v. Herboso, 881 So.2d 454 (Ala. Civ. App. 2003).

38 comments

  1. Eric G. Marsh says:

    I have a question, after 10 years of continuous care of my wife and children, my wife has
    file for a divorce. During the time we have been married she managed to get a degree in
    Business Administration and Criminal Justice. I on the other hand have not had an
    opportunity, to attend school. I am 42 and my wife is 30… My question is, what is the
    likelihood that my wife will be awarded alimony. If you can not comment on this site
    please send comment to ericgmarsh@yahoo.com

  2. Lee Borden says:

    If the judge gets involved in evaluating alimony, the judge will look at several factors, including but not limited to the length of the marriage, who makes what income, who has what expenses, who has the ability to earn more in the future, and who has engaged in what wrongdoing if any. Any attempt on either party’s part to focus on only one issue to the exclusion of the others will be frustrated. You need to be prepared to cover all the issues.

  3. Roberta Kerr says:

    I also have a question. The courts ordered my X to pay a certain amount each month and said that if neccessary, he may split it into two equal payments…due on the 1st and 15th of each month. At the end of January, he was “let go” due to cut-backs at the company with which he had been employed for 4 years. He decided shortly after being put on unemployment that he did not want to find another job and wanted to stay at home and do online trading. He is with a program that he can “paper-trade” with (pretend trade) until he feels confident enough to actually trade with. He has been paper trading since 2004. He had/still has ALOT of money in savings (He accidentally let it slip that his brother in Brazil gave him $10,000) and draws unemployemnt, but refuses to pay child support when he needs to or on time (I have to beg him for $100 here, $200 there). Is there anything I can do or what should I do about him. He’s been out of work for 7 months, refuses to get a ob, and says that if I need money so bad…I should get a credit card which is impossible due to me being an at-hme-mom (my husband works and I stay home with the 3 kids due to gas, daycare, and everything else costing SO MUCH) and my x destroyed my credit by pocketing the money I gave him to pay our bills online!

  4. Lee Borden says:

    When someone decides to try a risky new career, I believe the sooner you file to clarify they are voluntarily underemployed the better. The longer the judge is looking at it after the job change has happened, the more it begins to look like the status quo.

  5. mary says:

    my ex husband went to court two months ago to lower child support. at the time he was employed when he filed to have it lowered. we went before the judge for the hearing to see what the amount would be. the judge only lowered the existing amount by 100 dollars based on his job. my ex agreed to the new amount and signed the new order. by the way he voluntary quit his new job and was unemployed when he signed the final agreement!!! knowing he was unemployed at the time and still agreed to the new child support figures!!!! today i got a notice from my ex that he has filed once again with the court to lower child support! THIS IS 2 WEEKS FROM THE TIME THE FINAL ORDER WAS SIGNED BY THE JUDGE!!!! WHICH MY EX AGREED TO PREVIOUSLY!!! I AM AT MY WITS END! CAN MY EX DO THIS??? THE INK ISN’T EVEN DRY OFF THE PREVIOUS ORDER AND HE’S ASKING THE COURT TO LOWER IT AGAIN!

  6. Lee Borden says:

    There’s no restriction on the speed with which one can file a petition to modify, but Dad must be prepared to show there’s been a material change in circumstances that he didn’t know about when he signed the recent agreement.

  7. Fustrated says:

    My ex and I were married for 8 years. During that time he worked between 40-85 hours a week. After filing for divorce he stopped accepting over time to “pretend” to be a better parent and a few months later he took a lay off (voluntary) to collect unemployment and be a stay at home dad. Him and I are both figting for full custody, child support and he’s also fighting for alimony. Because of his dramatic change in his lifestyle how does a judge typically handle this ‘game playing’.

  8. Lee Borden says:

    Ask your lawyer to help you understand the concept of underemployment. My guess is that if you are going to make headway here, it’s going to be by demonstrating that your spouse is underemployed. Parenthetically, from the perspective of child custody, you may be arguing that this pattern is a temporary aberration that will end soon after the issues of child support, spousal support, and child custody are determined.

  9. Josh says:

    Me and my ex wife have been divorced now for a year. I have recently became unemployed. We settled on a payment for child support ourselves. Can I still get my child support lowered?

  10. Lee Borden says:

    If your unemployment was involuntary, and if the child support according to the guidelines is significantly lower than what you are now paying, yes, you probably can.

  11. Vera says:

    Hello
    I’ve requested modification on child support order, the father didn’t respond to the income worksheets sent to him. His income was imputed per state guidelines at 2,154.00 because employment security dept. shows no record of him working since ’06 . At the 1st hearing, he stated his income “just went down” to 1,500. a month. When asked by the judge why he didn’t respond with the worksheet, he answered that he was away a lot (truck driver). Hearing was continued. I sent him a request to produce last 2 years income tax and 2009 pay stubs. Same day I received a new proposed child support order from the father, with one pay stub from several weeks ago, stating he works for his brother 20 hours a week making 1,876.30 gross monthly.(“Coincidentally” my gross monthly income is 1,877.00) On the pay stub social security is taken out, why is it not showing up on his social security records? I believe his income is higher than what was even imputed for him, I think his brother is helping him out by providing the altered pay stub. A friend of his had mentioned before that he makes about 5,000 monthly.( which may have been exaggerated a little) Also in WA state the average truck drivers make is about 3,000. Also depending on how many contacts you have… How can I prove that he is voluntarily underemployed? (sorry for the long story) Thank you,
    Vera

  12. Lee Borden says:

    I can’t speak for your state. In mine, you would probably start by identifying some witness knowledgeable about the kind of job Dad does who could speak intelligently and authoritatively about the typical income someone like him would earn in that industry. It’s not a DIY project, because every state I know of has specific rules for how you qualify someone as an expert, and it’s easy to miss one of the steps.

    Another way to show Dad is understating his income is to force him to disclose what he is spending. If he says he’s making only $1877 per month but you can show he’s spending $3500 per month, the judge might find it easier to believe that he is underreporting his income.

    In my experience, people who are trying to prove a person’s income usually use both approaches in a complementary way.

  13. Amanda says:

    I am married to a man that has a 12 year old daughter from a previous marriage. We have a 9 year old son together. He has been a stay at home dad to our son for 7 of the last 8 years and we always had a verbal with his ex that we would help her if she ever needed anything. We did not pay child support every month but sent her money (sometimes way more than then monthly) every time she asked for it. She has now file for 10 years worth of back due child support. I am dealing with the back due issue now and attempting to locate proof of every payment we ever sent her. My question is can we get his “required” future support lowered if he has been a stay at home dad for so many years. I would also like to mention that my son is somewhat disabled and requires therapy several times a week of which my husband takes him. My husband does not have a degree and has no real earning potential short of minimum wage. We are not trying to get out of paying for his child and we will always make sure that she has everything she needs but with his ex breaking her verbal agreement we quiet frankly don’t trust her. What are our options?

  14. Lee Borden says:

    Your husband has committed one of the oldest blunders in the book, failing to pay child support the court ordered him to pay. Now you’re handling this the best way you can, by reconstructing what he has paid. And yes, the burden of proof is on him to show that he paid it. I guess you and he have learned your lesson now: when a judge orders you to do something, the smart thing to do is to obey the order. It’s just never a good idea to make up decrees on your own.

  15. I have a bit of a different perspective than most of the other’s on this website. I am married to a man who has an ex who refuses to let him see their daughter regularly, only when it’s convenient for her. He has made several attempts to contact her but she ignores his calls. When she does return his call, it is only to ask for more money. According to her, the father is the sole provider so he should have to pay for everything (her exact words)since she is unemployed, which we believe she is voluntarily unemployed. However, she has been unemployed since 2006 because she refuses to work when she can get my husband to pay for everything. We are planning to take the matter to court, but have a few questions before hand. Is the mother not required to work to help pay for the child. She is claiming she is in school now, but is that all it takes to get out of paying child support? Also, since he has been paying 100% of the child support, shouldn’t he be allowed to claim her on his income tax return since she has been unemployed pretty much since birth? Please help!!

  16. Lee Borden says:

    You’re a stepmother who thinks her husband’s first wife is lazy and getting too much money. Exactly how does that make you unusual?

    No, I don’t know that a judge would demand that Mom go back to work if she’s been out of the work force for many years. It might be good for everybody, including Mom, but judges rarely order it.

    On the other hand, unless Dad makes more than $250,000, generally his obligation is going to be limited to guideline child support, health insurance, and uninsured medical costs. He can choose to be more generous because he wants to, but I don’t know many judges who would order him to.

    And if Mom has no income and no prospects for income, I suppose there’s a possibility Dad could persuade the judge to alter the normal approach that the custodial parent gets the exemption. I’ll leave it up to you and Dad whether you want to take on the expense and hassle of raising the issue.

  17. john says:

    I’ve been divorced since November of 2007. We had a son who was 3 1/2 at the time (now 6). We live in Wisconsin, we got 50/50 custody and placement. I kept the house because she couldn’t have afforded it on her income and it was right near one of the best schools in the state where we had him registered to start kindergarten. She lived within 10 minutes of here, and our schedule (her Mon-Tues, me Wed-Thur, alternate Friday-Sun) worked fine. She was fired from one job, got another, then quit. She’s been unemployed since, for near to two years now. She just does some daycare now and housecleaning for friends. She has a masters degree in education and after she quit her teaching job, making good money, she now just lives frugally and is not trying to get any other work. Not even attempting to be underemployed by just getting some job with at least minimal health benefits or anything at a retail store or something, let alone find something her education would entitle her to have.

    She didn’t try to get child support changed when she lived nearby since she was getting by fine and I just spent money as needed for things for our son in addition to paying the child support. But then she decided to move over 70 miles away, because she wanted to live by her sister. She didn’t have any job prospect or anything, just “didn’t want to live around here anymore.” And before she actually moved, when I asked her about the hour’s drive each way for her to get him to school in the morning, and then get him after school, she said she wouldn’t mind it. Now that she’s seeing what it is doing to her easy lifestyle, she’s trying to blackmail me into changing our placement so she doesn’t have to do the drive. She threatens me with going to get more child support if I won’t give up some days for her convenience because now she isn’t making what she was making when we were divorced. Right now, we equally split weekdays over the course of a month, so I only have to pay daycare one day one week, and two days the other week, since I take off Wednesdays each week. She wants me to keep him Monday after school through Friday morning so she doesn’t have to drive hardly at all. This, of course, means I’m suddenly going to have to pay two times the amount of daycare each month than I am now, she’ll have to pay none of course, and since I will only get to see him after work for a few hours before his bedtime, I’ll be down to about 12 hours a week of actual interaction with my son, whereas she then gets every weekend.

    I would be more than willing to change custody and placement and keep him those weekdays, but I would still want every other weekend since that would be the only time to actually DO anything with him. Of course she doesn’t want that because she would lose money in the deal, and then she would be relegated to only seeing him really every other weekend, and I can’t blame her for not wanting to settle for that either. He doesn’t mind the ride that much, since he uses it to read or play his Leappad games, so I don’t think it’s hurting him other than the wasted time.

    Would this complete lack of an attempt to get work for the last few years despite having a masters degree be something I could bring up with regards to voluntarily being under/un employed? I, on the other hand, have only a high school diploma, was in the military, didn’t get a college degree, yet make good money due to my skills and work ethic. She quit her last job, and I don’t think that I should be forced to lose time with my son OR have to pay her more money simply because she doesn’t want to work. He is not suffering at either end of the arrangement with any privation or lack of things.

    I just refuse to give up my time with my son. He has asked many times if he can be here more because he doesn’t like it there. I don’t think it’s due to anything “wrong” on her part, though she spanks him for things I don’t think necessarily warranted it. But I think he just wants to spend time with his dad because he likes playing with me more than her, I get more involved with things he likes to do.

    What would be the best things I could shoot for? What would be realistic, and what would be unrealistic? The divorce agreement allowed up to 150 miles for moving without consent of the ex spouse, so she’s within her rights to be there. I just don’t feel it is fair for her to try to take it out on me that she now realizes it was a brain dead decision and she doesn’t like to do the drive anymore…

    Thank you for your time and thoughts.

  18. Kelly says:

    I have been going to court with my ex on and off for quite awhile. He was ordered to pay $89.00 a week in support and has managed to turn that into $18,000 in arrears, as well as a few thousand in medical/dental arrears. This is due to being voluntarily unemployed and/or underemployed and making nothing but horrible choices in his life. There have been numerous orders with which he has not complied, and he spent 30 days in jail at one point. Every time he was found in contempt, the judge would point out that since he never asked for a modification, he was in contempt. Last year he got the idea to ask for a modification because he was unemployed.I argued that he was in this position due to his own poor choices and that his actions caused significant hardship for our child and myself. There was a new judge and he was so horrified by the situation that not only did he not decrease support, he increased the amount of arrears he has to pay weekly so that the arrearage would get paid off.

    Fast forward to now. I filed a motion for contempt because he was skipping a lot of payments or making partial payments. Additionaly he has accrued further dental arrears. At the time I filed he hadn’t made a support payment in 7 weeks and I have paid over $4,000 for an orthodontist bill of $5,600 of which is half his responsibility. I asked that he be ordered to pay his half of the ortho bill and all unpaid support for 2010. When I went for the hearing, I discovered that there wouldn’t be a judge or even a marital master as we sometimes had previously. Instead there was a child support referee. This woman immediately pointed out to me that he had been employed for 3 months(3 whole months!) and support was coming out of his paycheck and he was current. I pointed out all the skipped payments and the 7 weeks of nothing. She told me not to argue with her. She couldn’t get around the ortho bill and told him he was in contempt and to pay me the filing fee and service fee. He didn’t have it. I just got the decision the other day. She didn’t do anything about the missed support payments and she rolled the dental arrears into what he is already paying back at $25 a week. The problem with this,(aside from the obvious) is that she overlooked the fact that there is still an outstanding orthodontist bill each month in the amount of $160. I asked for his half because I’ve already paid mine, but it isn’t paid off yet. As I said, I believe this is an error on her part. Please tell me they would not expect me to be paying his current bills on top of everything else. I am single, I work two jobs to try to make ends meet and I’m the sole caretaker of our child because he has chosen to exercise his parenting rights very infrequently. With the exception of the judge last year who actually got it, they say that they don’t want to order him to pay more than he is able to.For 14 years I have been doing far more than I’m able to. I can’t afford to pay this bill. I want to file a motion for reconsideration based on the ongoing treatment expense, but I’m afraid of what this woman will do to me next.

  19. Lee Borden says:

    Ask around and find out how the child support referee system works in your county. You may learn that the child support referee who heard your case is actually a volunteer rather than a permanent paid employee. At any rate, you have the prerogative to appeal to the judge any decision made by the referee, so don’t be afraid to file. You’re entitled to support, and you’re entitled to recover your arrears.

  20. Kaysi Hardin says:

    HI! Going to court tomorrow for child support. Anyways, my ex not ex husband just EX was working for the UNION making around 23.84/hr. Well before the court date, he decides he wants to go back to school, and now is drawing unemployment. ? We tried to work things out, out of court but it’s hard to get him to even buy DIAPERS. And the lady my child stays with while i’m working would not sign my child’s DAYCARE receipts because she said she was filing unemployment. But last night my ex said she signed for him and he hasn’t paid maybe 2 times for daycare in the past 2 months! So how do i prove that?

  21. Lee Borden says:

    It’s awfully late to try to do anything, but you need to do your best to show that Dad’s decision to leave a good job was a voluntary decision. And if the person you hire to watch your child won’t own up to your paying her, you may need to hire somebody else.

  22. Chaz says:

    Lee, I am primary custodian of my children. My ex-wife worked for two years in sales, with increasing pay at each new job she took. When I filed for divorce, she quit her job and stayed home. One year later she ran out of money and got a job again in outside sales. Finally, during last divorce trial, she “lost” that job the day before the verdict went in my favor.

    The Judge ordered her to pay minimum wage, until she got a new job. Then she was supposed to submit first 4 paystubs at a new job so we could calculate her new guideline support. She did not have to pay health insurance premium because she was unemployed. However, order states once she gets job she has to pay the childrens health insurance premium.

    So several months after divorce, she again got a job. She refused to tell me anything about it, who it was with, and give me the the paystubs.

    Then six months later, she sent me another email saying she’s unemployed again. All this time she refuses to pay the health insurance premium. She refuses to give me stubs so she can stay on minimum wage. Supposedly she’s on unemployment. She has sent me emails that she is looking for jobs in entertainment field as an “actress”, or other things that don’t pay.

    I’m in el paso, texas.

    In addition to this, I’ve put my children in private school. Part of the reason for this was to give them extra attention because they have special needs, although this was never fully documented any place.

    What would you do if you were me to get this woman to pay the child support at her true rate and to pay the health insurance.

    Chaz

  23. Lee Borden says:

    This is not my area, because most of my work is with couples who are able to be reasonably cooperative, but I would first ask you to speculate. Is she really earning money and just hiding it from you and the judge, or is she choosing to be unsuccessful? If the former, you’ll want to demonstrate that she is spending money and use that to give the court the basis it needs to impute income to her. If the latter, you’ll want to show that she is capable of being a success in sales, that there’s no discernible reason why she “lost” two jobs in quick succession, and that there are great sales jobs going begging even now for people who have her abilities.

    And I wouldn’t try to do this without the help of a good lawyer. It’s too specialized.

  24. Kelly says:

    If the full amount of child support exceeds what can be garnished from wages, is the court order now meaningless? In my case, the weekly support is relatively minimal and the majority of the amount ordered is to pay down arrears. There is enough being witheld to cover the current support, but not all of what is ordered for arrears. Is he in contempt for not paying the full amount ordered, or does the law regarding maximum garnishment trump the court order? Also, I am confused about the self support reserve. If after paying the full amount of support ordered he has $1,125.00 per month left over, and the state self support reserve is $908.00, does that mean the court would consider him able to pay over and above what is garnished to fulfill his obligation according to the order?

  25. Lee Borden says:

    Hi Kelly,

    Answers below.

    If the full amount of child support exceeds what can be garnished from wages, is the court order now meaningless? Nope.

    Is he in contempt for not paying the full amount ordered, or does the law regarding maximum garnishment trump the court order? He still owes the support, and his failure to pay it is a violation. Whether that means he’s in contempt would be a question for the judge to answer based on the judge’s conclusion about whether he is capable of paying.

    Also, I am confused about the self support reserve. If after paying the full amount of support ordered he has $1,125.00 per month left over, and the state self support reserve is $908.00, does that mean the court would consider him able to pay over and above what is garnished to fulfill his obligation according to the order? I’m not familiar with the term “self support reserve,” so I won’t try to answer this one.

  26. Kelly says:

    Thank you for your help, Lee. I had never heard of the self support reserve until the other day when I went through 110 pages of my state’s support guidelines with a fine toothed comb. Apparently every state has this and it is used in the calculation of support to ensure the obligor has enough money to live on. I don’t know what this means as far as enforcement though, if they went exactly by the laws, this guy would be in prison for up to 7 years and paying a $4000 fine for committing a class b felony.

  27. Sam says:

    Lee, Here is the situation: Alabama residents, divorced in 1998 with 2 children(currently 16 & 17), ex was making 23K as a collector for a group of collection attorneys and had been doing this for around ten years, ex remarries in 2002 and has a child 10 months later, new husband says he doesn’t want her working because she needed to stay home and raise their child, ex quits her job and they live off his income of 60K+/-, in 2006 ex’s husband quit his job and has not been employed more than a few months at a time since, he does work here and there for their landlord at his other properties in lieu of rent and utilities, ex takes a job in 2008 and quits in early 2009 after becoming pregnant again at 40, they ran up excessive debt during this time (2006-09) and filed Chpt 7 bankruptcy last year. She had some complications from the last child birth and is currently on disability. At her last job she was making around $8 an hour as a part time receptionist because when they ran up all the debt it was near to impossible for her to get a job doing as a collector because of the credit check. In my opinion if she never quits in the first place she is making 25K to 30K by this time.

    Recently, she says she is taking me back to court because I make more now than I did in 1998(was 38K now 54K) and her income is $800 per month disability. It is currently in the court order that we split college cost at the % of income at the public in-state tuition rate plus books, fees room and board currently around 12K total. I will pay whatever I owe it just seems unfair that her life choices may allow her to benefit by not contributing what she should to the children’s welfare, especially when they get to college. To put it all in perspective, last year my child support was within a few of thousand of their household income and they have 6 people in the household. What is the possibility the judge could impute her income to be 25K-30K or do you think the judge will go with the lower number of <10K? I would pay $150 more with her at 30K than I do now according to the calculators. If she is allowed 10K of income it is $360 more. If she gets the lower income number it will also dramatically increase college cost to me as well, increasing it around $2.5K per kid per year. I wish they would just come live with me and my wife get out of that mess because we make 110K+ combined and have better means to support them.

  28. Lee Borden says:

    I think you might have had a good chance to get a favorable ruling on voluntary unemployment when Mom first quit her job and her husband was working. However, now that she’s on disability you would face very tough odds indeed in convincing a judge that her unemployment is voluntary. You’re welcome to hire a lawyer and roll the dice, but it looks like a loser to me.

  29. Chris says:

    I am at the beginning of a divorce. We live in Mobile, Alabama. We were married for 8.5 years. 3 years ago my wife got a Biology degree. She has always wanted to go to grad school and while we were married I was inclined to support her with the dream/decision. Now that we are getting divorced she still has that dream and thinks that “full-time student” equates to “full-time work”. She has never even considered or looked into getting a real job in her field and pursuing the grad school through night classes and such. She is not even registered with the career center at the university. I know Rule 32 factors “work-related” daycare expenses into the child support calculation. Does taking 6 hours of class a week and working 0-10 hours a week in a student job put me on the hook for daycare expenses? Or, does this throw her into the category of voluntary un/under-employment, which would make the afterschool care for one and the full-day daycare for the other her burden?

  30. Lee Borden says:

    You’ll need to check with your lawyer about how your judge approaches this, because they really do differ. I have a vague sense (and I must caution you that it’s truly vague) that most judges would be inclined to base their decision whether Mom is voluntarily unemployed/underemployed on the extent to which they believe she is genuinely working to improve her long-term earning capacity or whether she would just rather go to school than work. In addition, I believe most judges would be more patient with someone who’s been out of the job market for several years.

  31. Fred says:

    The judge has ordered me to pay my ex almost half of my retirement and several hundred dollars a month for the rest of our lives or until she remarries or dies. If I cannot comply with the court order due to financial reasons will I be in contempt? I now live in another state, if found in contempt would I be jailed in the state where I now reside?

  32. Lee Borden says:

    If I cannot comply with the court order due to financial reasons will I be in contempt? Depends on whether you truly CANNOT perform. If it is literally impossible for you to perform an obligation, that’s a defense to a contempt petition. Just understand that what you regard as “impossible” may seem merely unpleasant to the court.

    I now live in another state, if found in contempt would I be jailed in the state where I now reside? More typically, you would be required to return to Alabama, to whose jurisdiction you are still subject even though you now live elsewhere.

  33. Fred says:

    A couple of follow up questions. The judge stated in his ruling that I had the “potential” to make X amount of dollars, however that salary is not remotely possible where I am currently and was only possible in Alabama because I had been with the Agency for over 25 yrs. If I can show that the current salary or jobs in this area that I am qualified for are significantly less, would that make a difference or not? Lastly, how likely is it that judgments like these are modified or overturned if appealed?

  34. Lee Borden says:

    If I can show that the current salary or jobs in this area that I am qualified for are significantly less, would that make a difference or not? That probably turns on the extent to which the move was forced on you. The less say you had in it, the more likely the judge will consider the change in your earning power.

    Lastly, how likely is it that judgments like these are modified or overturned if appealed? That’s anybody’s guess. There was a day when you could pretty much depend on a trial court’s call on a question like this to be affirmed on appeal. We’re looking at those days in the rear view mirror now, though. Find a good lawyer who has a lot of appeals experience and ask. They’ll know that one better than I.

  35. Mike C says:

    My wife and I are splitting up. That being said we are both going to have 50 50 physical custody. Here I’d my question. She will only work a part time job but has a high school education and is capable of making more than 10 dollars an hour and working full time. Will the judge look at this when child support payments are considered.

    • Lee Borden says:

      The principle you need to research in your state is called voluntary underemployment. If you Google “[Your State] voluntary underemployment,” you should be able to find out more about how it works in your state. In most states, the longer someone has been out of the job force or working at a less lucrative job, the harder it is to persuade a judge they are capable of earning more.

  36. Candace Chan says:

    Hi. Our MSA was finalized may 2016. My ex changed his position in January 2016 as director for Ericsson. I knew because SDU payments stopped with the transfer and I had to send forms in again. The new position required him to relocate or travel and in 3 months he was ” lay off” as a result he filed a week after the MSA for child support modification and spousal support. It is his attempt to impute zero income ( though he receives severance for 26 weeks). He plans to live off 180,000 payoff from our equalization payments and then relocate but try to get spousal and child support. How do I stop this? Do the courts recognize this injustice and manipulation on his behalf to report zero income to stop child support. How do I prove that he is delaying employment to do this?

    • Lee Borden says:

      Isn’t this exactly what voluntary unemployment is all about? Gather all the information you have demonstrating that he gave up his job on purpose and go see a good lawyer.

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