Tcl - the State of Voluntary Unemployment and Underemployment in Colorado - November 2005 - Family Law Newsletter
| Publication year | 2005 |
| Pages | 49 |
2005, November, Pg. 49. TCL - The State of Voluntary Unemployment and Underemployment in Colorado - November 2005 - Family Law Newsletter
November 2005
Vol. 34, No. 11 [Page 49]
Family Law Newsletter
The State of Voluntary Unemployment and Underemployment in Colorado
by John L. Eckelberry
This column is sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law. New column authors are welcomed.
Column Editors:
Gretchen Aultman, Denver, of Burns, Wall, Smith & Mueller, P.C. - (303) 830-7000, gaultman@bwsm.com; Marie Avery Moses, Greenwood Village, of Cook, Cooper & Moses, LLC - (303) 623-1130, marmoses@msn.com
John L. Eckelberry, Denver, is a partner with the law firm of Willoughby and Eckelberry, LLC - (303) 839-1770, jeckelberry@willoughbylaw.com. He has been actively involved
This article explores the issue of voluntary unemployment and underemployment as relates to child support. It reviews past court decisions to shed light on how decisions about voluntary unemployment and underemployment are made in the Colorado courts today.
One of the hot topics in family law today is the issue of voluntary unemployment and underemployment as it applies to child support. These terms are often used to determine child support obligation in cases involving a parent the court finds is not working to his or her full potential.
According to the Colorado Child Support Guidelines, a "basic child support obligation" is created based on consideration of both parents' respective incomes,1 except in cases where a parent is determined to be voluntarily unemployed or underemployed.2 In these situations, the court has the authority to impute more income to the parent for calculation of the child support obligation than the actual amount earned.
This article explores the issue of voluntary unemployment and underemployment as it relates to calculation of the child support obligation. Specifically, it examines how courts have determined whether a party is voluntarily unemployed or underemployed; the impact of the 2003 Colorado Supreme Court case of In re J.R.T v. Martinez;3 how courts have determined the imputation of income; exceptions to the employment and income categories; and the practical application of the precedents set by the courts.
Determination of Voluntary Unemployment And Underemployment
Courts have considered a parent's lack of initiative in finding a job that was comparable to one held in the past a primary factor in determining whether the parent is voluntarily unemployed or underemployed. For example, in In re the Marriage of Mackey,4 the mother, who previously had worked as a full-time fitness instructor, testified that she chose to work part-time because she was "too busy" and her situation was "ideal."5 Because there was no evidence that the mother lacked the ability to work full-time, the Court of Appeals found that she should be imputed income based on full-time wages. The court determined that a parent may decide to find whatever employment he or she wants and can base that decision on personal desires. However, that parent's employment decision should not place a financial burden on the other parent by making that parent bear a larger portion of the children's needs.6
Two similar Court of Appeals decisions also included an analysis of a parent's efforts to find comparable employment. Specifically, one father, a licensed attorney, was determined to be voluntarily underemployed after he took a job as a seasonal worker in an apple orchard at $10 per hour.7 Another father was determined to be voluntarily underemployed when he left his career as a lawyer to start a cattle-raising operation.8 The Court of Appeals found that despite the possible long-term benefits of the father's new career, it was not comparable employment because it resulted in a considerable immediate decrease in pay.9 Therefore, it is necessary to look at the short-term economic impact, especially to the children, when considering whether a change in careers is reasonable in the context of voluntary unemployment and underemployment.
In the 1995 case of In re the Marriage of McCord,10 the father, who quit his job as a construction worker immediately upon winning the lottery, contended that the trial court erred in finding him voluntarily unemployed. The father argued that he did not quit his job because he won the lottery, but because he was no longer physically capable of working in construction.11 The Court of Appeals rejected this argument, finding that the father was capable of carrying out his previous job duties.12 Because child support must be calculated based on a parent's potential income, the court upheld the trial court's decision to impute the father's income based on his lottery winnings, as well as the income he earned prior to his resignation.13 Therefore, courts also may consider the circumstances that cause the change of employment when determining whether a parent lacks...
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