Both parents have a legal obligation to financially support their child(ren). Even when one parent is not employed, that parent still has an obligation to support his or her child(ren). Typically, child support is addressed as part of a dissolution of marriage action or a paternity action. Sometimes child support is determined by the Department of Revenue.
It is not uncommon for a parent to quit their job or chose to work less hours in an attempt to reduce his or her child support obligation. However, these type of actions do not necessarily eliminate or reduce that parent’s child support obligation as income may be imputed for child support purposes.
Section 61.30(2)(b) of the Florida Statutes states how:
Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part. … In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census.
See Section 61.30(2)(b), Florida Statutes (2015).
The decision whether to impute income in determining child support obligations is within the trial court’s discretion. Guard v. Guard, 993 So. 2d 1086, 1089 (Fla. Fifth DCA 2008) (quoting Rojas v. Rojas, 656 So. 2d 563, 564-65 (Fla. 3d DCA 1995)). “A determination of child support … is within the sound discretion of the trial court, subject to the statutory guidelines and the test of reasonableness.” Scapin v. Scapin, 547 So. 2d 1012, 1013 (Fla. 1st DCA 1989).
In order to impute income when a party is willfully earning less than the party has the capability to earn through his or her best efforts, the trial court must determine: (1) that the termination of income was voluntary, and (2) whether any subsequent underemployment resulted from the party’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Guard, 993 So. 2d at 1089 (internal citations omitted). A court may impute income where a parent is willfully earning less and where the parent has the capability to earn more by the use of his best efforts. Gruber v. Gruber, 857 So. 2d 329, 331 (Fla. 2nd DCA 2003).
It should also be noted that Florida courts focus less on whether an allegedly underemployed parent left his or her previous employment voluntarily or involuntarily and more on what that parent has done since that employment, i.e., whether that parent has remained unemployed or underemployed voluntarily. Guard, 993 So. 2d at 1089 (internal citations omitted).
Once a court makes a determination that a parent is voluntarily underemployed, the trial court may then impute income to that parent. However, a court may only impute income at a level that is supported by evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. See id. at 1090 (internal citations omitted). In other words, income may not be imputed based on income records that are more than five (5) years old at the time of the hearing or trial at which imputation is sought or at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location. See Section 61.30(2)(b)2., Florida Statutes (2015).
When a court does impute income, it can take into account tax returns, paystubs, W-2s, 1099s and other evidence to establish the recalcitrant parent’s recent work history and earnings.
Consequently, a parent who wants to escape his or her legal duty to financially support their child(ren) should be aware not only that the courts take child support obligation very seriously but that they also have the authority to bring that recalcitrant parent into compliance through imputation of income.