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Can They Really Say I Make More Than I Do?! Pressing Child Support Question - Answered

child-support-florida.jpgWhen a party voluntarily reduces or eliminates income and the court concludes that the party has the ability to earn an income and pay child support, it is not error to order support based on the unexercised ability to earn.[1] "When a parent is voluntarily unemployed or underemployed or has an unexercised ability to earn, income includes the potential income that parent could earn, subject to that parent's actual ability."[2] In evaluating whether there is an unexercised ability to earn, the following factors should be considered:

  • prior employment experience and history
  • educational level and any special skills or training
  • physical and mental disabilities
  • availability for work (excluding periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness)
  • availability of opportunities to work in the local geographical area
  • the prevailing wage rates and number of hours of available work in the local geographical area
  • diligence exercised in seeking appropriate employment
  • evidence that the parent in question is able to earn the imputed income
  • personal history, including present marital status and present means of support, criminal record, ability to drive, access to transportation, etc.
  • the presence of the parties' children in the parent's home and its impact on that parent's earnings
  • whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification

2017 MCSF 2.01(G)(2).[3]

However, the Court cannot make generalized assumptions or use rules of thumb for imputing income - rather, the party seeking to impute must prove by a preponderance of evidence that the work is available and the other party is choosing not to accept that work.

Olson v Olson, 189 Mich App 620, 473 NW2d 772 (1991), aff'd, 439 Mich 986, 482 NW2d 711 (1992); see also Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008); Rohloff v Rohloff, 161 Mich App 766, 411 NW2d 484 (1987).

[2] 2017 MCSF 2.01(G) (emphasis added).

[3] See also Ghidotti v Barber, 459 Mich 189, 586 NW2d 883 (1998).

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