Establishing and Calculating Child Support FAQ

Can the court base its child support order on what I am able to earn, as opposed to what I'm actually earning?

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Questions:

Answer:

Can the court base its child support order on what I am able to earn, as opposed to what I'm actually earning?

In most states, the judge can examine a parent's ability to earn as well as what the parent is actually earning. The judge may order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person's ability to earn, but they are not conclusive where there is evidence that a person could earn more, if he or she chose to do so.

For example, assume a parent with an obligation to pay child support does one of the following:

  • leaves a current job and enrolls in medical or law school
  • takes a job with lower pay but good potential for higher pay in the future, or
  • takes a lower-paying job that provides better job satisfaction.

In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children's current needs take priority over the parent's career plans and desires.

On the other hand, several courts have ruled that a parent's imprisonment entitles the parent to a reduction or suspension of child support where there is no showing that the imprisonment resulted from an attempt to avoid paying the support.

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