The law isn’t set up to let kids suffer after divorce or separation just because their parents may harbor hard feelings toward each other. If your ex quits his job to spite you or to avoid helping pay child support, the judge won’t shrug and say, “OK, I guess you don't have to pay child support then.” The laws and rules differ from state to state, but your ex will still have to pay something. The question is how much.
Imputing Income to an Unemployed Parent
Courts can impute income to a parent when a judge determines he’s voluntarily unemployed. This means the judge can calculate child support based on a certain amount of income regardless of whether your ex is actually earning the money. He'll still have a support obligation, but with no way of paying it if he doesn’t go back to work. In this case, his arrears will continue to build up.
A Good Faith Effort to Find Work
If your ex has a legitimate reason for leaving his job, some states may take this into consideration, but others take a tougher stance. New Jersey doesn’t require that you prove your ex quit for the express purpose of not paying support, nor does California. But Florida requires proof that your ex has made a good faith effort to find work after leaving his last job. Parents are expected to consider the effects their choices have on their children’s well-being and that of their other parent. If they don't, they'll have to pay, anyway.
How Much Income Is Imputed
One of the greatest differences from state to state involves the way judges determine how much income to impute to an intentionally unemployed parent. New Jersey begins by evaluating the parent’s work history, education, skills and the jobs available in his area. This calculation is based on his earnings capacity. If this method doesn’t work for some reason – maybe he’s held down a variety of different jobs and has no college education -- the state will base imputed income on his historical earnings, typically what he earned the last two quarters before he quit. If all else fails, New Jersey and several other states will impute income based on current minimum wage and a 40-hour work week, less taxes. Still other states will order a vocational evaluation so an expert can determine what type of work a parent is best suited for and whether jobs are available in that field in his area.
Collecting the Money
If the court imputes income to your ex and he can’t or doesn’t pay, consider signing up for child support services in your state if you haven’t already. The state can take certain actions to convince him to make good on the debt he owes. You can also take him back to court yourself by filing a motion for enforcement. States and courts use several different collection methods, including interception of tax refunds, liens against property, suspension of a parent’s driver’s license until he pays up or even -- in some cases -- incarceration. Some states will even order the sale of his assets to satisfy support arrears instead of, or in addition to, imputing income to him. Others will impute passive income to his assets, such as if he sticks his cash in a coffee canister rather than places it somewhere it could earn interest. The court will consider what the money would earn if placed in even a modest investment, such as a savings account.