By Hope Tuber
Pursuant to the Child Support Standards Act, (“CSSA”) child support is based on a combined parental up to $154,000.00. Once salaries are combined, that number is multiplied by a statutory percentage which is a function of how many children there are in the marriage. Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis, which is determined by the ratio of salaries between the parents. However, the only payment that is made is by the noncustodial parent to the residential or custodial parent.
A common question which Courts deal with on a regular basis is as follows: the nonresidential parent either quits their job or takes a job at a substantial decrease in salary to avoid paying more in child support. Courts are well aware of this tactic and can impute income to said parent for purposes of child support. Take for example the case of Friedman v. Friedman, which was decided on January 8, 2013. In this case, the husband claimed he was unemployed and threatened to remain unemployed. After a trial on child support, the court heard testimony from all parties and imputed $55,950.00 to the husband and used this figure for child support in accordance with the CSSA. Subsequently, two months after trial the husband moved for a downward modification of support because he obtained a job, but it paid him less than the $55,950.00 income that the Court imputed to him. This was rejected by the court.
It is well settled that where child support obligations are set by the court in a divorce action and not by stipulation, a court may modify a prior order or judgment as to child support upon a showing of a substantial change in circumstance including financial hardship. The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification.
In this case, the Court, first and foremost, did not believe the husband’s testimony at trial that he was unable to procure employment. Consequently, the Court looked at prior tax returns and imputed, or held him responsible, for earning $55,950.00. Then upon the Husband’s motion for a downward modification he merely asserted that he obtained employment but at an income which was less than the Court imputed income. However, this was not enough to demonstrate a significant change in circumstance especially as this new job was obtained a mere two months after the ruling. Consequently, in this case, the Court denied the husband’s request for a downward modification.
Remember this because your spouse threatening not to work, or to earn less money, in order to avoid paying the proper amount of child support, does not necessarily mean they will not be held responsible for earning a living and paying the support your child needs. Courts are well aware of this tactic and may impute income to the “unemployed” party.