If you have had a stable salary history, child support will most likely be based on that history unless you can prove that the past is not applicable to the future, as in Henry’s situation, above. When confronted with the Child Support Guidelines and divorce, many people react by reducing overtime hours, delaying commissions or bonuses, or otherwise attempting to minimize their incomes, at least until child support is calculated and determined by the court.
This tactic is risky business. Typically, courts award child support (and alimony) based on earning capacity as opposed to actual earnings, and will not hesitate to do so when it appears that people have voluntarily reduced their earnings. Click here for a story about someone’s personal experience with this.
If your income is decreased, you will need to prove that your claimed income reduction is legitimate. For example, if your industry as a whole is shrinking (e.g., “defense contractors”), be prepared to offer industry information and statistics concerning this problem. If your work is seasonal, be prepared to offer evidence of the past 3-5 years of these cycles. If competition has been stepped up with the addition of additional workers, thereby reducing available overtime, be prepared to offer a statement from your employer outlining the changes which have been made in the workforce. If your commission structure has changed, and despite your best efforts you cannot earn what you used to earn, be prepared to explain that as well.
Most important, be prepared to prove that whatever reduction you’ve suffered in earnings is not your fault, and was not voluntary. If the court thinks that you’ve voluntarily reduced your income in an effort to minimize support payments, you risk being ordered to pay support based on previous available earnings, as opposed to your current actual earnings. Click here for another terrific article.
Many people find that their working capacity is lower during the divorce process, because they are stressed, spending so much time on their case, or in court. This constitutes a temporary situation, and will not alter your child support obligations. However, if depression or other psychological factors inhibit you from producing your normal amount of work, or maintaining your usual standard of living, explain this to the court and/or your attorney. You may be offered a temporary reprieve, with a fixed time period after which you’ll be expected to resume your normal daily operations.
The most popular phrase divorce lawyers hear is “Well if I have to pay that much, I’ll quit my job!” That’s no solution to the child support problem, however, because the court can consider your earning capacity, not just your actual earnings. So, if you reduce your overtime, quit your job, take a voluntary demotion, or do anything that voluntarily reduces your income, you take the chance that the court will base your child support on your prior earnings, not on your current earnings.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
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Tags: Child Support, Protecting Children
