Divorce is one of the most difficult things a person may have to face in their life. It can affect every part of one's life, including their relationship with their children, their savings, home and retirement plans and their ability to support themselves. Often one person does not want the divorce even though the other person does. This can lead to situations where the party that does not want the divorce will make threats to the person that wants the divorce. These threats can consist of threats to drag the divorce out, to make sure the other person does not see the children or that they will spend every last dime to make sure that the other person is left financially destitute. This blog is written to cover the situation where the bread-winner spouse threatens to quit their job in order to avoid paying child support or alimony or in an attempt to leave both parties destitute.
Imputation of Income and an Unexercised Ability to Earn.
Unfortunately, when faced with an unwanted divorce, many adults are not able to act as adults and rather than attempt to deal with the situation in a rational manner they will lash out and make these threats. In fact, such threats are so common that the law has developed ways to handle such threats and if the threats are acted upon, how to handle such negative actions and poor decisions. If a spouse does act on these threats, it can create a short-term difficulty for both parties but typically it will come back to bite the person that makes such threats.
In the situation where one party actually quits a job in order to reduce income, the court will consider whether or not this person has an unexercised ability to earn income. If the person voluntarily leaves the employment, then most likely the court will find that there is an unexercised ability to earn income. The court can also find there is an unexercised ability to earn income where a party was involuntarily terminated from employment if that person has not made reasonable efforts to seek substitute employment. The same can be true for a spouse that has been out of the workforce for an extended period of time.
If the court believes that there is an unexercised ability to earn income, then the court will impute an income to that party. This means that the court will consider the person to be earning the income he or she should be earning when determining alimony and calculating child support. So for instance, if a spouse was earning $150,000 and the court finds that this spouse quit their job or is voluntarily unemployed, then the court will use the income of $150,000 for that person when calculating child support regardless of the fact that this spouse is not actually earning that income. This can be disastrous for the voluntarily unemployed spouse because the child support and alimony will be ordered and continue to accrue even if the spouse does not actually have the income to pay the support. Failure to pay support can result in contempt of court which means the court can seize vehicles, revoke a party's driver license or occupational licenses and even put the nonpaying spouse in jail. Therefore, in most instances it is a bad idea for a spouse to quit a job in order to avoid potential support allegations. It typically results in more attorney fees for both parties and usually has a negative result for the spouse that has the unexercised ability to earn income.
If you are considering a divorce and your spouse is making threats to intimidate you or try to delay you from filing, please do not hesitate to contact us to schedule an appointment, we can help.