This is a more complex question than it might at first appear.
First, we need to address the matter of people who confuse beliefs with facts. If I had a dollar for every client or potential client parent who came to me claiming that the other parent was far more wealthy than he or she was letting on, I myself would be a millionaire. But that doesn’t stop most parents from making utterly unfounded allegations to the court that the other parent has income greater than he or she is reporting, has money stashed away in all kinds of secret bank accounts and other places, and or is receiving income from unearned sources, such as trusts or inheritance or investments or rental properties or intellectual property, etc.
Please bear in mind that the court is not required to believe claims uncorroborated by any credible evidence, no matter how strenuously you may assert those beliefs.
Now, in situations where in fact, a parent is not employed but does receive unearned income of some kind or another, that income can, and almost certainly will be, considered for child support calculation purposes. At the risk of oversimplifying the definition of unearned income, it is basically money that is not earned from active employment.
The Utah Code defines actual (as opposed to imputed*) income for child support calculation purposes as follows:
(1) As used in the guidelines, “gross income” includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
*But what if a parent is capable of earning an income but simply fails or refuses to work for an income? That is where imputation of income comes into play. In Utah, in the context of child support calculation, “imputed income” means income that if a parent is found to be capable of earning a certain amount of money, then that parent is treated for child support calculation purposes as if he/she is earning that income, even if he/she is not in fact earning it. Here is how the Utah Code imputes (and does not impute, in certain situations—see subsection 8(d) below) income for child support calculation purposes:
(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.
So, in answer to your question about whether a parent can be ordered to pay child support even if he or she does not have a job and earn an income that way, the answer is yes, that parent can be ordered to pay child support.
I have noticed three chronic problems with clients in just the few weeks I have been working as a legal assistant.
1) Most clients seem to have an almost allergic reaction to providing required information to the court and to the opposing party and to filling out documents required by the court. It does not merely surprise me how hard it is to get required information out of most clients, it’s shocking and demoralizing. It doesn’t seem to matter what information is required, how long or how short the document they have to fill out is, and it doesn’t seem to matter whether they are the petitioners or respondents in the case.
2) Most clients seem to have a blind spot for deadlines. They could be reminded weeks (even months) in advance of a looming deadline, then reminded every week, then every other day, then every day, then multiple a day, and still act surprised when we chew them out in the 11th hour for having little to nothing done and shooting themselves in the foot as result.
We get that a divorce case is gut-wrenching. We understand that it’s discouraging–even terrifying–to deal with the allegations and the costs. We understand the all too human desire to bury your head in the sand and hope in vain that it will all just go away. We understand why the temptation to procrastinate is so strong. Which is why you need to do the work, in full and on time. Avoidance will only make things harder, will only make things worse.
3) Many clients provide false and/or incomplete information to the court and to the opposing party in the course of a divorce case. Whether they outright lie or are simply being careless, the consequence is the same: credibility is damaged, (often irreparably) and the case is weakened (sometimes irreparably). The more honest and completely forthcoming you are, the stronger your armor is in the litigation battle. Truth be told, lying and deception can result in some big wins sometimes, but lying and deception are wrong (and despite their general reputation for playing fast and loose with the truth, there are some lawyers out there who take their oaths to be honest and just seriously). If being morally upstanding isn’t enough to inspire you to be honest, frankly the risks of lying and deception aren’t worth the consequences if you’re caught (and most liars get caught).
4) It’s amazing how often clients get in legal trouble over the course of their divorce proceedings. They’ve been stand-up and law-abiding citizens their whole lives up to that point, but then they “miraculously” are accused of domestic violence, stalking, substance abuse, tax evasion, DUI, child molestation, etc. Now, clearly there is a difference between committing a crime and being falsely accused of a crime by a spouse who is trying to use the false allegations as leverage in the divorce action, but it is surprising how often divorce causes good people to snap. Whether they end up in jail (or picking up trash along the Interstate to work off their community service) or passed out on the floor drunk or high or both, many good people are pushed over the edge by divorce. Remember that when a divorce case is filed, you may find yourself reaching your breaking point. Be prepared. Swallow your pride. Keep your judgment clear. Don’t be afraid to find the occasional listening ear or shoulder to cry on. Find safe and non-incriminating ways to deal with the despair, fear, anger, and anxiety by spending time with family and friends, fellow church members, or, if need be, a good (a good, not just any) counselor or therapist.
The reason someone retains the services of an attorney in a divorce case is to get the help they need to do what they cannot and should not do themselves in the divorce case. A good lawyer is a good value. But the best lawyer in the world is not a wizard. Your lawyer shouldn’t be spending his time and your money saving you from yourself. Do yourself a favor and keep this in mind (and avoid the chronic missteps I see clients engage in far too often).
Law from a legal assistant’s point of view, week 18: Financial Declarations and Initial Disclosures
By Quinton Lister, legal assistant
My minimal exposure to the legal profession as a legal assistant to a divorce attorney has given me the opportunity to learn about financial declarations and initial disclosures. These forms are necessary for any party going through the process of litigation for a divorce, and they are straightforward as to what they require.
The financial declaration is a statement of income, expenses, debts, assets, and financial accounts for each party to a divorce action.
One’s initial disclosures form identifies people with information relevant to the case, the potential witnesses, and documents and other physical evidence a party asserts supports his/her case.
Completing the financial declaration and initial disclosures forms completely and correctly, along with gathering all the necessary supporting documentation, is a time-consuming process. With rare exception, divorce litigants do not want to prepare these forms. I know this because anyone I have tried to help through this process always fails to complete the forms and/or complains about the work that needs to be done on these forms. I get it, but what the clients often don’t seem to get is that your financial declaration and initial disclosures are not optional. Court rule require both you and your spouse to fill them out, fill them out correctly, and fill them out fully. Failing to do so can result in the court penalizing you and/or making erroneous rulings based upon incorrect and/or incomplete forms.
I am not a lawyer and thus cannot give any legal advice, but as someone who has taken part in the process of helping clients prepare their financial declarations and initial disclosures, I can see that preparing these forms completely, accurately, and on time greatly benefits you and your lawyer, saving you both time and frustration, as well as sparing you grief, on the back end.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There are many possible reasons. Lawyers are notorious for being hard to reach and for being unresponsive and nonresponsive.
If you aren’t paying your lawyer, don’t be surprised if you’re being ignored and don’t wonder why.
But if you are paying your lawyer (in full and on time), there are still many possible (common) reasons could include, in descending order of the most likely explanations:
Your lawyer has way too many open cases and has thus rendered himself or herself unable to give you and your case the attention they both require.
Your lawyer is incompetent, and so your lawyer avoids your calls and emails to avoid having to do hard work and/or give you bad news about how he or she has screwed up.
Your lawyer is lazy and thus does not respond to you in a timely manner.
Your lawyer doesn’t care about your case enough to give it the attention it requires.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can I sell or trade in the family car while divorce proceedings are pending?
How would a spouse in process of divorce go about trading her van that is in both spouses name, if the other spouse is uncooperative? Would surrendering her van to the bank be an alternative?
If you owe more on the van than it is worth and don’t depend upon the van for essential transportation needs, then if you were to sell the van such that you’d be left with just the loan deficiency (the difference between the amount the van was worth or sold for and the remaining balance of the loan), you’d probably not be punished. It would be hard for anyone to argue or for a court to conclude that by getting rid of a van worth less than the loan encumbering it you destroyed, dissipated, or diminished an “asset” that had a negative value. And if your spouse agrees (get it in writing!) you can sell the van, you’re fully in the clear.
Bear in mind, however, that many states have an “ATRO” rule (automatic temporary restraining order) that provides that in every divorce action that concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life. Violation of this rule can result in you being sanctioned for contempt of court. Other states that don’t have ATROs in divorce cases can still provide for the judge to enter a restraining order at the outset of a divorce case that, among other things, restrains you and your spouse from transferring or disposing of any marital property without the written consent of the other party or an order of the court.
Also bear in mind that if your credit is already bad and you won’t be able to qualify for a new loan for a replacement vehicle, you may be better off paying the loan for a vehicle you have in hand. And if 1) your spouse depended on using that van to get to work or the doctor or the store, etc., 2) your spouse does not want the van sold, and 3) by selling the van you would deprive your spouse of his/her only means of transportation, the court would likely frown on that and order you to provide or pay for a replacement vehicle.
The safest way to sell off the van or trade the van in for a different vehicle is to move the court (file a motion with the court) for permission to sell the van or trade the van in for a different vehicle. Now just because you filed the motion does not necessarily mean the court will grant that motion.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I believe what you mean to ask is, “Does an ongoing Divorce make you unable to focus and be productive at work?” The answer to that question is: for most people, yes.
When Divorce Increases Productivity at Work
Some people actually find that a divorce makes them more productive at work because they find that their jobs give them something to take their minds off the divorce and a purpose into which to channel all of the energy and effort that would otherwise be wasted on worry, anxiety, and rage. But I find these people to be in the minority of divorce litigants.
When Divorce Decreases Productivity and Work Quality
Your question is better than you might have imagined. You ask a very important question because many people going through divorce do not realize until it’s too late what a deleterious effect the divorce is having on the quality of their work and/or their productivity on the job. I’ve known more than one person to lose his or her job as one of the unforeseen consequences of divorce.
If you are going through a divorce, make sure that you find some way to deal with the strain outside of work, so that you don’t end up taking it to work only to find that it places your livelihood in jeopardy.
What to do?:
I don’t like exercise, but when I exercise I can see that I can handle physical and emotional stress better. If divorce is driving you to distraction, get some exercise. It strengthens your ability to deal with stress, and it helps you get a better nights sleep.
Go to church. One of the primary purposes of church is to provide comfort to the suffering. If your divorce is causing you suffering, except the comfort the church offers. Hear inspiring messages of hope and forgiveness. Bask in the brotherhood of your fellow parishioners. Take your minister up on his or her offers to confer and counsel with you privately, if and when needed. Avail yourself of opportunities to provide service to others in need. Paradoxically, we feel so much better when we take the focus off our own pain in our efforts to relieve the pain of others.
Seek professional therapy or counseling help. Many of you reading this may think “I’m just going through a divorce, I’m not mentally ill,” but the fact is that for most people divorce takes a greater toll on them psychologically and emotionally then they imagine. Divorce literally can drive you crazy, if not permanently, then on a temporary basis at the very least. For those of you who are skeptical, you must look at it this way: if therapy or counseling is not for you, then put that question to the test by attending two or three therapy or counseling sessions. If you find that it does you no good, you can conclude that it’s not for you. But if you find that it is helping, you’ll be glad you had the humility to get this kind of help that you need.
Utah Family Law, LC | divorceutah.com | 801-466-9277
The answer to your question lies, in part, in the question itself.
The dictionary defines narcissism as “selfishness, involving a sense of entitlement, a lack of empathy, and a need for admiration, as characterizing a personality type.” So narcissistic men who want to prevent women from working may do so for at least a few reasons. One, to ensure that the woman waits on him hand and foot. Two, so that the woman will be depended upon him as the sole breadwinner in the family, and therefore obligated to admire and praise him. Three, so that the man can feel superior to the woman.
With all that said, however, I must note that there is no shame in a woman choosing to be a homemaker and full-time caregiver to a couple’s children. And there are many men, I being one of them, who believe that children are given the best care and best shot at healthy, normal, and successful development when they have a full-time caregiver from birth until they mature to adulthood at 18 and they graduate from high school. This does not make me a narcissist if I am the one who works outside the home and my wife stays home with the children. This is something that both husband and wife have to agree upon and choose to do together. The fact that I would be the primary breadwinner, or the only breadwinner, would not make me superior to my wife and the mother of my children in any way. Indeed, when a woman who has talent that could be harnessed and cultivated in the workforce, her decision to forego or postpone “worldly success” for being a mother and caregiver to her children it’s a sacrifice that demands both her husband’s and society’s admiration and appreciation.
My wife, with the eternal gratitude of her husband and her four children, made such a choice and such a sacrifice. But this does not mean that the sacrifice is absolute. After our youngest child was old enough to fend for himself, my wife went back to school and got her masters degree. This year she will start in her new job as a special education teacher.
Utah Family Law, LC | divorceutah.com | 801-466-9277