When a Utah Court decides how to award child support and/or alimony in a divorce or parentage case, the Court takes into consideration each party’s income. The Court wants to know the income of each parent or party before it calculates and decides how to determine child and/or spousal support.
However, if one of the parties is not working, or perhaps working at a job that is below the party’s skill level, educational background, or that is inconsistent with historical employment and earnings, the Court might decide that it is appropriate to “impute” a higher income to that party than he or she is actually earning. So even if a party is earning $2,000 per month, for example, the Court might attribute $3,000 per month to that party for purposes of a child support and/or alimony determination.
For child support determinations, income can be imputed by the Court if either:
(1) the parent agrees to an amount to be imputed;
(2) the parent “defaults” in the case; or
(3) a hearing is held, and the judge finds a basis to impute the parent’s income.
In deciding whether there is a basis to impute a higher income, the judge could consider the parent’s employment opportunities, work history, occupation qualifications, education, literacy, age, health, criminal record, other employment barriers, and the earnings and job availability for persons of similar backgrounds in the community. See e.g. Utah Code Ann. § 78B-12-203(8).
For alimony (spousal support) determinations, the court must consider the party’s “earning capacity or ability to produce income,” and can consider the same factors mentioned above. See Utah Code Ann. § 30-3-5(8)(a)(ii).
It is likely that one of the purposes behind this Utah legislation permitting income imputing is to encourage underemployed spouses to obtain employment at their full capacity.
For example, assume a party is trained and licensed as a physical therapist, but instead remains unemployed. Assume that after evidence is presented, the Court finds that the average salary for a physical therapist in that area of Utah is $80,000. The Court can “impute” this salary to the party, and make a child support or alimony determination based upon this imputed amount.
If a party does not have a recent work history or their occupation is unknown, income may be imputed at the federal minimum wage for a 40-hour work week. (Currently, $7.25/hour, coming to $1,256.67 gross monthly.)
However, sometimes conditions exist, not of a temporary nature, which will prevent the Court from imputing income, such as: childcare costs exceeding the amount of income a parent can earn, a parent being physically or mentally unable to earn minimum wage, a parent receiving career or occupational training to establish basic job skills, or unusual emotional or physical needs of a child requiring the custodial parent’s presence in the home. See Utah Code Ann. § 78B-12-203(8)(d).
But what if none of those conditions exist, and a party who has a specialized skill set, educational degree, or professional license, hasn’t worked in a specialized field for some time? Could a Court reasonably expect that party to obtain a job in that field when they might be quite rusty? Or unqualified and unsuccessful at gaining employment in the past?
In our next blog, we will explore these questions as we delve deeper into the topics of unemployment and underemployment, and whether a Utah court will consider it voluntary versus involuntary, and how that plays into income-imputing.
In the meantime, if you believe your income, or the income of the other parent, might be susceptible to income-imputing in a child support or alimony issue, it is always best to consult with an experienced, competent Utah attorney.