Voluntary Unemployment and Underemployment

By: W. Curtis Wiberg

As part of a divorce or custody case, the Court may be asked to make determinations concerning child support and alimony (spousal support). The most significant consideration in these determinations is each party’s income. While it is often easy to just look at the most recent paychecks or W-2 of each party and plug those numbers into the child support and/or maintenance guideline calculations, when one party is not working, not working full-time, or not working at an employment/income level that is consistent with his/her capabilities, the income issue becomes much more interesting and complicated. Experienced attorneys will understand the intricacies that come when determining and proving income of in some cases.

The authority for a Colorado family law judge to make a finding of voluntary underemployment or voluntary employment derives from C.R.S. § 14-10-115 (b)(I) and C.R.S. § 14-10-114 (8)(a)(IV). Once this finding is made, the Court has the authority to determine an income amount for a party it believes that party should be making, not what they are actually making. This is commonly referred to as “imputing income.”

A Court determining Colorado child support or maintenance looks to many factors to determine what a party’s income should be. These factors include:

• What a party historically earned.
• Whether a party has an opportunity to work full-time instead of part-time.
• Whether a party has been making good faith efforts looking for appropriate employment.
• Whether a party has sought employment consistent with their prior education and training.

Regarding this last factor, a party who believes his or her spouse is underemployed can request the appointment of an expert known as a “vocational evaluator,” which is an expert trained at analyzing a party’s work history, skills and education and the local employment market, and then determining a range of income a party is capable of making.

A party can possibly avoid a finding of voluntary unemployment or underemployment if that party is in the process of obtaining education or a degree or entry level employment in a different field, with the belief and plan that the education is likely to increase that party’s earning potential in the future. This commonly referred to as making a good faith career choice. In these instances, the court will look at the educational plan and assess whether it is truly designed to lead to more income down the road. We often find courts to be in favor of people broadening their educational and earning horizons. At the same time, career students should be wary, as most judges and attorneys will see through someone attending school just to attend school.

If a party is laid-off from employment, or even fired for misconduct, he or she will not necessarily be deemed voluntarily unemployed or underemployed as long as he or she continues to make a good faith effort at finding employment at as high an income as they are capable of making under the circumstances of the available job market. When litigating these issues, we always advise our clients to keep track of each and every job applied for, and to keep any and all emails, letters, or other communications related to their job search efforts.

A party who is caring for a disabled child or a child under 30 months is also not considered voluntarily unemployed or underemployed. However, if a parent is working with those limitations, the income being earned will be factored into the support determination.

Also, it is not voluntary underemployment if a party does not work overtime or a second job, even if those are available to a party, as long as the overtime is not a condition of employment. A party is only held to the income of one full-time job.

As demonstrated above, determining a child support and/or a spousal support amount is not always a cut and dried application of the law. The determination of a party’s income can be, in many instances, one of the more complicated and conflicted aspects of a divorce or child support case. If you are involved in a Colorado family law case in which one of the parties is not working full time, not working at an income level historically achieved, or not working at all, it is important to consult with an experienced Denver family law lawyer to make sure you understand your options and to help make sure that the resulting support order is fair to you.

To discuss your case with an experienced lawyer, contact Plog & Stein, P.C. We serve clients in all Denver metro area counties.