Under normal circumstances, determining child support can be a complicated and contentious matter for divorcing spouses. Their employment and salary histories are examined and used to calculate how much each parent should contribute to their child’s welfare. Both parents can end up owing child support, but it’s typically the noncustodial parent who ends up paying.
In many situations, the custodial parent – who has physical custody of the child – relies on the noncustodial parent’s financial support to help afford the child’s needs. But what if this parent is unemployed or becomes unemployed while the child support order is in effect? There are a number of implications and considerations to take into account when the parent most responsible for child support becomes unemployed.
How Is Child support Calculated?
Before we get into how unemployment can affect child support, let’s address how this obligation is calculated. The first step, typically, is to evaluate both parents’ net disposable income – this is the difference between their gross incomes and certain deductions.
Gross income can include salaries, commissions, military pensions, Social Security benefits, and yes, unemployment benefits. If a parent attempts to artificially reduce their income level by working less, quitting, or refusing to work, the court is inclined to impute their income. This means an amount of money that the parent shouldbe making will factor into the overall child support calculation – regardless of whether or not the parent can actually meet that obligation.
Once the gross income is determined, deductions are applied. These can include state and federal income taxes, union dues (if mandatory), health insurance premiums, and more. In addition to these deductions, other relevant costs as far as the child’s health care, daycare, and more should be itemized for the court to take into account.
When all of these factors are crunched by the child support calculator, an estimate for monthly support payments is generated. Of course, the court has the discretion to order additional payment if the child has special needs or for visitation travel expenses.
Involuntary & Voluntary Unemployment
When a parent paying an active child support order becomes unemployed, the obligation is not automatically null and void. In order to seek relief from an order, the unemployed parent must file for a child support modification and demonstrate that their unemployment is involuntary. If successful, a judge may grant a reduced order for the unemployed parent.
As far as the courts are concerned, involuntary unemployment is a state in which the parent has lost their job for a legitimate reason and can’t find new work despite reasonable job-hunting efforts. These are situations where the parent was laid off, fired without cause, downsized, or had their position eliminated.
It’s important to note that the courts don’t find the following as legitimate reasons to be unemployed:
- Getting fired for misconduct or illegal activity
- Voluntarily quitting for an early retirement
- Voluntarily quitting to return to school
- Voluntarily quitting for any other reason
If you are unemployed because of any of the reasons above, the court will likely consider you to be voluntarily unemployed. Should that be the case, a judge may impute your income and take into account the salary or income you were making most recently.
The court will take into account a parent who is making less money than they could be. This is done by evaluating his or her employment history and qualifications to determine if they are working beneath their earning potential. This is known as voluntary underemployment, and specific examples include taking a voluntary pay cut or cutting back on work hours.
Unfortunately, parents who are trying to transition careers by taking entry-level positions that earn less than they did before could be considered voluntarily underemployed. The court will take the parent’s reason for the career change into account, but how that transition will impact the child takes priority.
If a court determines that a parent is voluntarily underemployed, their income is imputed according to the child’s best interests.
Unemployment Check Garnishment
If you have a child support order in effect while you’re on unemployment, your obligation doesn’t change unless you can get a child support modification. If you fall behind on payments, the state will garnish your unemployment checks and continue to do so until your debts are paid in full.
If you’re unemployed, you should consider seeking a child support modification that can help you reduce what you owe so that you don’t accrue an overwhelming amount of debt while you remain unemployed.
We at Claery & Hammond, LLP are here to help clients with all family law matters, especially those concerning divorce and child support. We understand having your interests in these issues protected is of paramount importance, especially if you or your ex-spouse has recently become unemployed.For more information about how we can help, contact us online to schedule a free consultation or call (310) 817-6904 today.