Lawmoe, question re: imputed income

[avol]

Lawmoe,

Short story is that ex had a baby, and apparently had some sort of complications with the delivery, so she had a c-section and went on "disability". She now claims that she is a stay at home mom for good. She had a 60K job in info technology prior to having a baby (summer 2004).

I have two kids, ages 5 & 6 who will be going into school, so daycare is no longer needed, yet she refuses to sign a stipulation that emliminates $1,300 in monthly daycare support that is withheld from my pay. She is claiming that she's going to ask for more basic child support (I pay $1,200 month in that as well), now that she's at home at doesn't have income.

We were in court last week over school district choice, we live 1 miles apart, but in 2 different counties and therefore 2 different schools. She won school choice because she declared that she's at home for good now, and the she can put the kids on the bus and be there when the bus lets them off. If they went to my school, I would have to arrange for 2 hours of care from 3:30 p.m. to 5:30 when I got home from work. we have joint legal and 50/50 physical.

Question is, will they (court) impute her income at $60K since she chose to have a baby, which led to her "disability", and what will the court do about day care costs. There aren't any since she's at home and they ruled last week that on my days I take them to her house and she's puts on the bus and they get off the bus at her house at 3:30 and I pick them up at her house on my days as well. The master ruled that the kids are better off with a parent versus some form of childcare.

thanks,

AVOL

[Lawmoe]

I assume that the "disability" that precludes here from working no longer exists. Based on the facts that you presented, you have an extremely strong argument to impute income.

[DavidGS]

I know that, were the roles reversed, they would impute income to you. Whether or not they are willing to do it to her is another matter. I know that my ex had an 80k/year job. When we subpeonaed her financials the last time, she refused to provide them (quit her last job just before trial) so the judge imputed minimum wage. Ugh

[CustodyIQ]

DavidGS,

I'm also in CA.

I spent quite a bit of time building strong evidence as to my ex's 1) experience, education, and skills, 2) on-going refusal to work to capacity, 3) existence of opportunity to work.

I also used my ex's Income/Expense declarations to show her household expenses and argued that it is a matter of logic and reason that her net income must at least equal her declared monthly expenses.

Legal arguments:

A) Foundation of CA's child support code state that each parent will work to his or her capacity to support the child.

B) Case-law I referenced was Labass/Munsee (imputation and working to capacity) and In re Marr. of Henry (valid to impute net income equal to declared monthly expenses).

My ex repeatedly claimed (for years) that her net was only $400/month. She is self-employed and IRS tax returns only showed $2k for the year.

Still, court bought my argument.

I had requested income imputation at $3750 to $5000 per month. Court imputed $3750.

If you can build new evidence as to her earning capacity, I imagine that would be a change of circumstance (i.e., much higher than minimum wage) to argue the merits of income imputation again.

[nuke]

I would also (depending on her career path) check with the Dept. of Labor for her state. I was able to impute income based on statistics I obtained for my ex's county. I asked that they impute the average salary in her field, but since she had been out of work all I got was the average starting salary in her field (certified medical technician). Even that was more than twice minimum wage, so I considered it a victory.

[wmscott05]

in a similar vein...

what's the recourse if the judge imputes income and the Custodial Parent still refuses to work? Even absent a disability and with a work track record in the past of $25-30K/year? Theoretically could the CP live off Child Support indefinitely with no recourse?

[CustodyIQ]

No one can be forced to work.

All the court can do is assign how much they COULD earn, and then it's all done.

If judge says she can earn $2k per month, and that's what number goes into the child support calculation, that's all that matters.

What she does thereafter really is irrelevant, unless she starts earning $3k per month, at which point you can go modify again.

Theoretically, income imputation is supposed to show how much a parent has the capacity to earn, if that parent worked full-time. It's not supposed to be a discounted figure, but it's certainly possible that judges will err conservatively or pick some number between minimum wage and what the working parent is requesting for the other parent.