Hammond Child Support Claims When Parent is “Voluntarily Underemployed”

During the recession, it was understandable that many parents paying child support sought modification of those orders, to more accurately reflect the reduced income they were earning at the time.

Child support orders in Indiana can still be enforced for parents who are receiving unemployment benefits, but the amount may be significantly less if the court grants a modification in line with current income.

As we emerge from these tough times, we find that some people are still struggling more than others. But in some situations, the courts have found parents who could work and earn more if they wanted – but they aren’t doing it. The courts call this being “voluntarily underemployed.”

A parent who is deemed voluntarily underemployed by the court can be ordered to pay more in child support than what his or her income might otherwise suggest they could afford. Sometimes, the court will allow a grace period for the offending parent to secure more work, but it’s usually on a strict deadline.

In these situations, the court will determine your potential income based on:

One’s employment potential;
One’s probable earnings level, based on work history;
Occupational qualifications;
Prevailing job opportunities;
Earnings levels in the community.

One such case, Reilly v. Northrup, recently reviewed by the state supreme court of Alaska, supported a lower court’s finding of the father’s “voluntary and unreasonable underemployment,” and subsequent denial of his request for ordering reduced child support benefits.

Here, the two parents, who were not married, had a son in Alaska before separating. The father moved to Montana, where he worked part-time, repairing and renting out homes and managing a bar. The mother retained physical and legal custody of the child, and the father retained visitation for six weeks during the summer.

Shortly after the move, the father requested his child support be modified due to the fact that his income had fallen. The mother argued he was voluntarily underemployed. The father claimed he couldn’t find full-time work because of his obligations to a special needs daughter from a previous relationship. The superior court did not find his reasoning credible, and as such, denied his child support modification request.

A similar case was heard by the Indiana Court of Appeals in 2008. In the case of Ziegler v. Hunt, the mother alleged the father was $6,000 in arrears on child support. In response, the father requested a modification of the support order.

Here, the father had previously worked as a salesman earning $55,000 annually. However, he was terminated from that post and began working as a wedding photographer, earning about $20,000 annually. He later ceased doing wedding photography and took a job with a student loan firm, earning about $8.50 hourly.

The court found that the husband was voluntarily underemployed because he chose to discontinue his wedding photography business. In reviewing the case (and later affirming the earlier ruling), the Indiana Court of Appeals specifically reviewed Indiana Child Support Guideline 3(A)(3). According to this statute, a parent is voluntarily underemployed when he or she has some history of working and is capable of entering the work force but voluntarily fails or refuses to work or to be employed in a capacity keeping with his her abilities.

The court offered the example of a parent who has a nursing license, yet is choosing to work a minimum wage job. His or her earnings potential will be based on what he or she could earn as a nurse, not what they are earning now.

Most of these cases may not be as clear-cut, so it’s important, whether you are seeking a modification or fighting the modification, that you consult with an experienced Indiana family law attorney.

Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources:
Reilly v. Northrup, Dec. 20, 2013, Alaska Supreme Court
More Blog Entries:
Revisiting Indiana Parenting Time a Common Issue in Family Court, Dec. 6, 2013, Hammond Child Custody Attorney Blog