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Earning Capacity in a Divorce or Support Action

If you are getting a divorce and there are child or spousal support issues involved in your case, the Court can hold you to an earning capacity if you are not working or you are not fully employed. What this means is that Court can assess you with a potential income based on your work history, education, skills, or even possible earnings. For example, if you work 15 hours a week and earn $ 20 an hour, there is a good chance the Court can impute earnings of 40 hours a week at $ 20 and hour on you when they determine support. This does not mean you have to work 40 hours but it means that income will be used to determine how much support you will receive from the father of your spouse.


Sometimes a vocational expert may be hired to assess your abilities to earn a living and this person will testify and write a report on what they think is a reasonable earning capacity. This is not always employed due to the cost of hiring a vocational expert and bringing them to Court but may be useful when an employee has significant education or skills that should generate a higher income.


If you are self-employed, the Court may also impute an income to you that differs from what you report on your tax return. The Court will scrutinize you more closely when you are self-employed, reviewing tax returns, personal expenses paid by the business, your income and expenses form. If you attempt to testify that your income is less than what your expenses clearly seem to generate, the Court may decide your income is based on the expenses you pay out.


If you are disabled or you are receiving unemployment, the Court will use the disability or unemployment income as your income rather than assess you will a full time earning capacity. In some instances, a court may attempt to hold you to the minimal income you can earn while still collecting benefits, but you should never agree to this. If you are disabled and have children, you may want to also be sure you have applied for the benefit for the child. If you are disabled but you have not yet gotten approved for Social Security, the Court may hold you to an earning capacity. In those cases, you want to get a disability note and records certified from your doctor.

For additional information, see:com/Family-Law-Divorce/Divorce-Involving-Business-Owners-the-Self-Employed.shtml

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