Underemployed and temporary child support

My ex and I are in the middle of a
divorce and I filed a motion for
temporary child support, as my ex is
not adequately providing for our child
he only pays half of the day care
expense, and I pay the other half plus
insurance and daily expenses. I
learned that he got a lesser paying job
and began this job two weeks AFTER I
filed the motion for child support. The
change in jobs is a drastic drop in my
ex’s income, less than half of what he
was earning annually. What can I do to
prove that my ex is voluntarily
underemployed and for the court to
imput his income?

Asked on June 11, 2016 under Family Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Voluntary underemployment is when someone freely chooses to earn less for a not-otherwise-valid reason. So, the first issue is, you would have to show that this was voluntary: e.g. he wasn't laid off, terminated, etc. (or didn't have a notice that a layoff, etc. was imminent). Second, you'd have to show that there was not  some other good reason for the change: e.g. did he need shorter hours to care for a sick family member? Does he have some health or other issue himself which made the change prudent (i.e. he couldn't keep doing what the other job required)? Was the other job going to transfer her, and required lots of business travel, and he needs to be around for possible joint custody of your child(ren). If you can eliminate (or he cannot show) some acceptable reason for the change, then with that and the timing, you'll have a good case for voluntary underemployment.
However, doing the above will almost certainly delay matters in terms of getting the child support, since you'll have to present your case, he'll have the opportunity to refute it, there will be a hearing on it, etc. Assuming you need some support now, there is much to be said for use his current income right now, get some money, then fight to increase it later.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.