Pounding the Pavement: Employment Transitions During Divorce

• Author: Meredith Laughridge Cross
• Pages: 14-17

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Earning Capacity

What does “earning capacity” mean?

In the context of a divorce, earning capacity relates to a

spouse’s present or future ability to earn an income. e

parties’ respective earning capacities are relevant when there is a

claim for support. Depending on the circumstances of the

case, a spouse’s earning capacity can be based either on the

income a spouse presently earns or upon evidence of a spouse’s

ability to earn an income. When a spouse is intentionally

depressing his/her income and/or is refusing to work to avoid

paying support, the court may use other evidence of a party’s

earning capacity to determine income. is evidence may

include, but is not limited to, a spouse’s educational history,

skills, talent, and experience in the workforce.

How does earning capacity aect my claim for support?

Earning capacity is used to evaluate support claims such as

child support and alimony. Because the amount of support

you will receive or will be ordered to pay is based upon these

numbers, it is important to have accurate accounting of your

respective incomes and earning capacities when calculating

support. For example, if in anticipation of divorce your

Pounding the Pavement

Employment Transitions During Divorce

By MEREDITH LAUGHRIDGE CROSS

spouse has quit a high-paying job only later to assert an

inability to pay support due to a lack of income, your

spouse’s new, lower income would not be an accurate

reection of his/her earning capacity for purposes of calculat-

ing support. To use the new, lower income in determining

support would reward the supporting spouse who has acted

in bad faith and penalize the dependent spouse.

Can I have the court impute income to my spouse?

Possibly. ere are instances where the court can and does

impute income to an individual. In determining whether the

imputation of income is appropriate, the court will seek to

determine the reasoning for the individual’s lowered income

or lack of employment. For example, if an individual is

voluntarily unemployed or underemployed, a court can

impute income to that individual when calculating support

obligations in a case. However, there are some instances

where the court cannot and/or will not impute income to an

individual. For example, if a party is unemployed but is at

home and providing care for a minor child under a specied

age (for example, age 3), the court will not impute income to

this individual caring for the minor child.

Published in Family Advocate, Volume 43, Number 1, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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