I am constantly surprised by the frequency of this problem in divorce and child support cases. I estimate that roughly 10-15% of my caseload consists of attempts to ensure that a spouse is adequately employed and supporting his/her child. Certainly, the poor economy has affected the income of many people. However, throughout my career, I have addressed this issue during good and bad economic times, and I find that it persists, regardless of the health of the economy. There are simply some people who cannot, for whatever reason, hold a job. There are also some who remain underemployed. The result is that the former spouse, and often the child, is deprived of appropriate support. Thankfully, Wisconsin law addresses this problem.
A parent who is un-employed or under-employed can be “imputed” with income by the judge. This means that, even if the parent is not earning income, the judge can order support as if he/she was employed. That parent will then be required to make support payments at an appropriate level, regardless of employment. Payments can be made from assets and eventually, through the seizure of tax refunds. In some cases, if a parent simply refuses to work and pay support, I have seen the judge order the parent jailed. Judges will also often require a parent to actively seek employment, and report those efforts to the judge and attorneys. The parent is often required to apply for a certain number of jobs every week (similar to the requirement to receive state W2 assistance). This is certainly an effective tool to determine if the parent is making legitimate efforts to find employment.
The lawyer’s role is to convince the judge that the unemployed parent can work, and at what level of income. This can be done in a few ways. First, by reviewing the parent’s previous income and proposing that support be established based on those figures. Second, the attorney can have a vocational evaluator prepare a report on the parent’s earning capacity. The evaluator reviews the parent’s education, skills, personality, employment history, and the job market, to determine suitable jobs and income. The judge can adopt this report to “impute” income to the parent.
There are certainly some cases in which a parent has valid reasons for loss of income. Certain industries (construction, real estate) have been hit harder by the economy. A parent may also have valid medical reasons for not working. These circumstances of course must be considered to be fair to all parties. It may be counterproductive to order increased support from a parent who simply cannot legitimately pay it. Such an obligation will only place that parent in worse financial circumstances.
In my experience, parents sometimes need a push from the court to obtain appropriate employment. The process need not be ugly or difficult. It is simply a means of ensuring that both parents maintain their obligations to support the child. If you are facing an issue like this, from either perspective, I encourage you to contact me.
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