This Week’s Blog by Andrew M. Eliot
In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Essentially, pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula, which yields a weekly child support obligation that one parent must pay to the other.
For Divorce and Family Law attorneys in towns such as Greenwich and Darien, it is not uncommon for a client to raise concerns about the amount of child support he or she may be entitled to receive because the would-be obligor parent’s income has either declined dramatically from what it once was, or may decline dramatically in the near future for any number of reasons. In some situations, the decline or potential decline in income may be involuntary, such as where a parent is fired or laid off by an employer. However, in other situations, the decline or potential decline in the income of a potential obligor may result from voluntary actions on that parent’s part, such as (a) an intentional career change into a less lucrative line of work; or (b) in some extreme cases, intentional and nefarious measures taken by a potential obligor spouse to reduce his or her income for the specific purpose of minimizing child support obligations. Consider, for example, a scenario in which a potential child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue in order to pursue a career as a musician. Alternatively, consider a scenario in which the same potential child support obligor involuntarily loses his or her high-paying job in finance, but then fails to make diligent efforts to find commensurate employment.
Notably, Connecticut courts have a means of addressing what lawyers often refer to as “voluntarily unemployment” or “voluntary underemployment,” in order to ensure that children receive adequate and fair financial support. Voluntary unemployment or underemployment occurs when a parent voluntarily makes less income then he or she formerly received or, upon experiencing an involuntary reduction in income, subsequently fails to make diligent efforts to find employment at a level equal to or better than income formerly received. In such circumstances, courts have the ability to attribute or “impute” income to an obligor parent for purposes of determining that parent’s child support obligation. In other words, when plugging the obligor parent’s income into the mathematical child support formula referenced above, courts may utilize an income figure for the obligor parent that reflects the amount of income that parent could potentially be earning (commonly referred to as “earning capacity”) rather than the amount the parent is actually earning.
In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ. Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination. However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health. It is not uncommon in earning capacity cases for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.
Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise. At Broder & Orland LLC, we have extensive experience with earning capacity issues and have a well-established track record of achieving favorable results for our clients in such matters.