Question: My husband and his ex are currently going back to court to modify their parenting plan and child support. His ex voluntarily stopped working 5 years ago to stay home with her new baby by another father.
How do we figure his percent of obligation if she is not working? Does this mean that he is responsible for 100% of the court’s obligation figure for the kids per month ($1,060) or is there a maximum percentage that he would have to pay?
Also, we have a 4-year-old daughter together. Can she be counted as a new dependent for him?
I must preface that I do not practice in your state. You should contact a domestic litigation attorney licensed in Florida to discuss the laws regarding determination of support. Cordell & Cordell has many attorneys licensed and located in Florida who would be happy to help.
In most jurisdictions, each parent has an obligation to maximize his or her earning capacity for the support of the children. Depending on the laws in your jurisdiction and the details of your situation, your husband may be able to obtain a Seek Work Order or ask that the Court impute income to his ex-wife based on her earning capacity rather than her actual earnings.
A Seek Work Order requires a party to do just that, seek work. Your husband would motion the court for the order and the court would have a hearing to determine whether she should have to seek work. If the motion is granted and after a reasonable period of time the Court finds that his ex has not made diligent efforts to seek work, she could then be held in contempt which could include a monetary sanction and/or jail time.
As an alternative to a Seek Work Order, many jurisdictions allow the Court to impute income to a party who makes a voluntary and unreasonable decision regarding his or her employment. The term is called “shirking” and the question is whether or not her decision to not return to the workplace is reasonable. If imputing income is available, your attorney will have many questions to determine whether the circumstances of your husband’s case present a shirking argument. I would specifically want to know how many children they have in common and the age of the children. In my jurisdiction, Wisconsin, many Courts have held that having a new child does not eliminate the parent’s duty to support the older children and will impute income to a person who stays home to care for a child she has with another person.
Of the states that impute income to a parent, jurisdictions also vary as to the amount of income that is imputed. Some jurisdictions determine whether or not she is capable of work, and if so, the Court will impute minimum wage and determine the number of hours she is available for work per week. Some jurisdictions impute to earning capacity or earning potential. Often times a vocational evaluation must be performed by a vocational expert to determine her earning capacity. Some courts have been reluctant to impute income to earning capacity however given the present economy and lack of jobs available.
Support is often based on a state formula. Many states have a serial payer statute which take into consideration previously established support obligations when determining new support orders. However, since your child and her child would be subsequent to the Order that they are both in court for, serial payer formulas generally would not apply.
Because each state calculates support differently, your husband should discuss his situation with an attorney right away.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.