The economic recession that was triggered in 2007-2008 took a heavy toll on the economy and still continues to have an impact today. Despite the wide-ranging financial impact, many American workers were able to weather the storm with little disruption to their earning capacity or job security. However, the economic downturn also has provided ill-intentioned individuals to attempt to avoid or modify their support or alimony obligations either through intentionally working a job below the obligor’s skill set so as to reduce income earned thereby reducing the support obligation. In more extreme cases an obligor may claim that they are unable to find a job due to economic conditions, in a veiled attempt to avoid support obligations.
The most extreme cases (and most damaging to the party receiving support involve voluntary unemployment whereby a parent who can physically work, chooses not to. One should be drawn on the assumption that all periods of unemployment will be deemed voluntary, as experience teaches the job market can be challenging. Therefore, periods of unemployment during one’s working life is not abnormal. However, where a parent routinely turns down employment, quits their job or intentionally gets terminated the natural inference leads to the fact the parent may be voluntarily remaining unemployed. Although, cases of voluntary unemployment, have been found, a party alleging this type of conduct must keep in mind the fact that moving party must show that the obligated party has intentionally engaged in this type of conduct.
Voluntary underemployment involves situations when a parent intentionally makes choices that result in a downward effect on their earning capacity. For example, a parent with an advanced degree whose local peers with the same education or experience may earn $100,000 per year works for a $25,000 per year in a position outside of his field could be presumed to be voluntarily underemployed if the party making the claim that given the market conditions and the obligated party’s employment history and training more appropriate employment could be found.
Analyzing Voluntary Underemployment Or Unemployment
Typically, an issue regarding voluntary unemployment or underemployment is brought before the court either on a motion to compel payments from the party receiving support or on a motion to modify or reduce payments by the party obligated to pay support. Under either scenario, a court’s evaluation of voluntary unemployment or underemployment may examine “any intentional choice or act that affects a parent’s income” in order to determine “whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income.” OCGA § 19-6-15(f)(4)(D). Further, a court may consider a parent’s past or present employment, as well as ownership of valuable assets. Banciu v. Banciu, 282 Ga. 616, 617-618(1), 652 S.E.2d 552 (2007).
Remedies for Voluntarily Underemployment or Unemployment
For situations of voluntary underemployment or unemployment, Georgia courts often impute income to increase the amount of child support or alimony being paid. The courts rely on statutory guidelines that consider a number of factors to impute to income to an obligor whose current earnings are not reflective of earning capacity. These factors include work history, skills and education, assets, ongoing efforts at vocational development, the parent’s health and role as a caretaker of another child or individual.
If a parent fails to provide any information pertinent to the factors above OCGA § 19-6-15(f)(4)(A) provides:
When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parents income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.
Issues of voluntary underemployment or unemployment arise are rarely dealt with in a summary manner given the fact that proving that a party has intentionally diminished his or earning capacity often involve evidence of a pattern of conduct of avoiding employment or accepting lower paying positions. In areas where the economy is depressed, or the job market is overly competitive, these questions become even more complicated to answer. Further, the ultimate issues to be answered in this type of inquiry involve a party’s subjective intent which can be difficult to ascertain at best.