My spouse can earn more money, what can we do to ensure that the court recognizes his/ her ability to earn more?
The issue of imputation of income can arise in different circumstances, not just in the question stated above. These instances include, but are not limited to:
- A spouse quits his/ her job prior to the commencement of the divorce or during the divorce.
- A spouse is fired from his/ her job for cause prior to the commencement of the divorce or during the divorce
- A spouse who has an extensive education background and work experience but is underemployed or is not working.
- A spouse who works hourly but has begun to work fewer hours.
- A spouse who is a stay-at-home wife/husband, who can work and has extensive work experience, but has chosen not to work.
The instances stated above could lead a court to consider imputing income against the other party, as that party could be determined to be what the courts call “voluntarily underemployed.” To determine child and spousal support, VA Code Section 20-108.1 governs; It is important to note that for the purpose of imputing income, the Court needs to know not only if there are circumstances that give rise to the possibility of imputation but also if the party accused of being voluntarily underemployed has the ability to earn the imputed income.
For instance, can a court grant the request for imputation of income against an individual who was earning $100,000 a year as an executive of a large company, but recently had a health issue that left him slightly disabled and unable to earn the same amount of (or any) income? On its face, it may look like a straightforward answer. However, the Court must take into consideration the totality of the circumstances before they can make a determination on whether he can be truly considered fully disabled, and no income can be imputed against him, or his disability bears no hinderance to his ability to earn any income or $100,000.
In another instance, can a court grant the request for imputation of income against an individual who quit his $60,000 job, because as his text messages state “you will not get a dime”. It is likely that based on the circumstance, the Court may impute income, based on clear evidence of intent and action committed to quit a job to avoid paying support.
An attorney can use the evidence supplied to create a great argument in Court. An employment evaluator can also be hired to make an evaluation/ assessment of this individual’s past work experience, educational background, and more. This information will help the expert decide the appropriate salary to be imputed. This information must be relayed to the Court, and it is at the discretion of the Court to use the evaluation/assessment to make a ruling on the matter.
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Contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com, to connect with an experienced attorney in your area who can guide you through the process.
Wehinmi Shekoni
Associate Attorney