When California family courts make decisions about whether divorcing spouses should be on the hook for alimony or child support payments, they often look at the spouses’ respective abilities to pay. That usually means not only considering what each spouse makes at the time, but what he or she could make. As the state’s Fifth District Court of Appeals recently explained, courts aren’t likely to take it easy on a spouse who unilaterally decides to reduce his or her income, even if it’s to pursue an education that may eventually enhance the spouse’s earning ability.
Husband was on active duty in the Navy when he and Wife filed for divorce in 2008, after roughly 12 years of marriage. They agreed that Wife would move with the couple’s three children to the Chicago area and that she would serve as the primary custodial parent. When the divorce was finalized in 2010, a family court ordered Husband to pay Wife more than $2,500 per month in child support and another $400 per month in spousal support. The spousal support award was later increased by about $100.
At some point in 2012, Husband applied and was admitted to law school at the University of New Mexico. He filed a motion to modify his support obligations soon thereafter, explaining that he would be attending school as a full-time student, receiving housing through the Veterans Affairs Department and a merit scholarship, and that his income was expected to drop to about $900 per month.
A trial court denied the motion, finding that Husband had unilaterally decided to reduce his income – at least for the time being – by becoming a full-time student. As a result, the court said it would impute to him the earnings that he otherwise could make if he continued in his previous job. The trial court said the support awards should remain at the same amount based on that salary.Affirming the decision on appeal, the Fifth District said the trial court didn’t abuse its discretion when it decided to impute the income to Husband. “A parent does not have the right to divest himself of his earning capacity at the expense of his former spouse and minor children,” the Court explained, citing the Fourth District’s 1997 decision in In re Marriage of Ilas. “If that parent unilaterally decides to pursue his education and thus does not seek employment to the best of his ability, the court has discretion to impute income.” The court said this rule applies even in situations when the parent is looking to pursue higher education or a degree.
This is just one of the many support-related issues that can come up during and after a divorce. If you’re considering seeking a divorce, it’s important to mull over these issues with an experienced attorney. With more than 30 years of experience, San Jose divorce lawyer John S. Yohanan is an accomplished family law attorney who has helped a number of clients resolve alimony and child support matters on optimal terms. Call our office at (408) 297-0700, or contact us online to schedule a consultation.