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How unemployment or under-employment affects child support

QUESTION: I was looking into child support laws, I am confused about how involuntary vs. voluntary unemployment or under-employment affects the child support obligation.

If a non-custodial parent wants to quit his job ($60k/year) to pursue law school for the next three years, causing his income to drop significantly, but can still pay child support as ordered (it will be harder, but doable), would pursuing this education be considered involuntary underemployment? Would it result in the obligor parent being penalized by the court in any way?

ANSWER: No.

When you think about it, child support obligors have no obligation to work or to be employed, they just have an obligation to pay child support based upon their reasonable ability to earn a living they are capable of earning. All the state and the child support obligee care about is that the obligee gets paid.

As long as the obligor pays the amount of child support ordered, the child support obligor has no obligation to work to earn money for the payment of child support. This makes perfect sense.

Unemployment or under-employment becomes a factor in setting the original, or the modified, child support obligation when the question arises as to whether a parent should be “imputed” an income he/she does not actually earn. In those circumstances, the Utah Code considers these factors:

(See Utah Code Section 78B-12-203(8))

(a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:

(i) employment opportunities;

(ii) work history;

(iii) occupation qualifications;

(iv) educational attainment;

(v) literacy;

(vi) age;

(vii) health;

(viii) criminal record;

(ix) other employment barriers and background factors; and

(x) prevailing earnings and job availability for persons of similar backgrounds in the community.

(c) If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

(d) Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;

(ii) a parent is physically or mentally unable to earn minimum wage;

(iii) a parent is engaged in career or occupational training to establish basic job skills; or

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home.

A court would almost surely see one who:

– voluntarily refuses to work to attend, and while attending, law school as voluntary unemployment.

– voluntarily quits a $60,000 per year job to attend law school, and then works part time while attending law school, as voluntary under-employment.

In either situation, I have little doubt that no court would lower the child support obligation. The exception in Utah Code Section 78B-12-203(8)(b) applies when (and only when) “a parent is engaged in career or occupational training to establish basic job skills” Section 78B-12-203(8)(d)(iii). Studying to become a lawyer is not “training to establish basic job skills.”

Utah Family Law, LC | divorceutah.com | 801-466-9277

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