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What can you do if your spouse is making less than he should be?

For purposes of child support calculation, the Ohio Revised Code defines “Income” as the gross income of the parent, if the parent is employed to full capacity or, for the parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent. See R.C. § 3119.01(B)(9). Potential income, for a parent who is voluntarily underemployed or voluntarily unemployed means: 1) the income which can be imputed to a parent based on numerous factors; and 2) the imputed income from non-income producing assets which should be producing income. See R.C. § 3119.01(B)(17).

The factors the court can consider when imputing income are:

  • (i) The parent’s prior employment experience;
  • (ii) The parent’s education;
  • (iii) The parent’s physical and mental disabilities, if any;
  • (iv) The availability of employment in the geographic area in which the parent resides;
  • (v) The prevailing wage and salary levels in the geographic area in which the parent resides;
  • (vi) The parent’s special skills and training;
  • (vii) Whether there is evidence that the parent has the ability to earn the imputed income;
  • (viii) The age and special needs of the child for whom child support is being calculated under this section;
  • (ix) The parent’s increased earning capacity because of experience;
  • (x) The parent’s decreased earning capacity because of a felony conviction;
  • (xi) Any other relevant factor.

Generally, a court will simply not impute a prior, higher income to a parent simply because that parent no longer makes that same income. Typically, in order to prove under- or un-employment, you must retain an experienced vocational evaluator. The vocational evaluator will be able to determine how much your spouse should be making.

Whether the under- or un-employment is voluntary is based on numerous factors. Generally speaking, someone who is laid off or loses their job through no fault of his or her own is not considered to be voluntarily underemployed. However, if someone is terminated for cause or simply decides he or she wants to work less and make less, that parent is exposed to be imputed income for purposes of child support calculation.

Given that child support can anywhere up to 18 years, imputing even a slightly higher income can have a significant effect over time.