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).