How the Family Court Can Establish Support Based on Money You Don’t Have
Written by: Megan Dell
Under South Carolina law, the Family Court can establish support obligations based on money you don’t have, specifically, your “imputed income.”
Why Does Your Income Matter?
In Family Court, each party’s current and past income can affect how assets and debts are divided, whether alimony is awarded (and if so, how much alimony is awarded), the calculation of child support, and whether one party should be required to pay the other party’s attorney’s fees.
Arguably, nothing can affect your Family Court case more than being able to prove your income.
What is Imputed Income?
Imputed income is the potential income a person could earn if employed at full capacity. It does not matter whether the person is actually earning that amount, only that he or she is unemployed or underemployed.
As explained in Dixon v. Dixon, 334 S.C. 222 (Ct. App. 1999): “If the obligor spouse has the ability to earn more income than he is in fact earning, the court may impute income according to what he could earn by using his or her best efforts to gain employment equal to his capabilities, and an award of [support] based on such imputation may be a proper exercise of discretion even if it exhausts the obligor spouse’s actual income.”
Motive Matters, but Bad Faith is Not Required
Though a person’s motive for any reduction in income or earning capacity will be considered, the Family Court can find someone to be underemployed and impute income to them without finding they acted in bad faith or with a motive to minimize their obligations.
The result is that sometimes income is imputed to well-meaning people who quit their job with good reason, are terminated without cause, or change employment to improve their long-term earning potential.
Factors Used to Determine Earning Potential
Section 3.1.5 of the South Carolina Child Support Guidelines directs the Family Court to consider the following when determining a person’s income potential:
- Recent work history
- Occupational qualifications
- Job opportunities and earning levels in the community
These are the same factors the South Carolina Family Court considers when determining whether a person should be able to pay alimony or attorney’s fees.
Circumstances When Income May Be Imputed
The failure to reach full earning capacity, by itself, does not automatically result in a finding of voluntary underemployment such that the Family Court will impute income. See Kelley v. Kelley, 477 S.E.2d 727 (S.C. Ct. App. 1996). When actual income versus earning capacity is at issue, the Family Court must closely examine the payor’s good faith and reasonable explanation for their underemployment.
For example, in Mazzone v. Miles, 341 S.C. 201 (Ct. App. 2000), the Family Court considered that the father had lost his prior job because he refused to participate in fraudulent activity; he did not appear to be motivated to avoid his support obligation; and the business he opened had not yet become profitable.
However, in Chastain v. Chastain, 289 S.C. 281 (Ct. App. 1986), the Family Court considered that the husband, who had a bachelor’s degree and a master’s degree, voluntarily chose to leave the job market to attend law school, which supported a finding that he was voluntarily underemployed. Likewise, in Engle v. Engle, 343 S.C. 444 (Ct. App. 2000), the Family Court’s decision to impute income to a mother who had left employment with Furman University to pursue a master’s degree was upheld by the Court of Appeals.
Ways Having A Lawyer Can Help You
If you are now earning less than you did before, an experienced Family Court lawyer can help you persuasively explain the change in your employment. This minimizes the likelihood income will be imputed to you.
Or, if you believe your spouse is underemployed, we can help you show the Family Court how much your spouse is capable of earning based on their work history, qualifications, and available job opportunities in the area.
