One of the fairly common problems in many cases where support is at issue is whether a party is earning to his or her capacity. An example of this is where a person with multiple degrees and/or extensive work experience is either unemployed or underemployed.
Example: Wife owns a business during marriage which grosses anywhere from $1.8 Million to $3.6 Million consistently. During the divorce, Wife claims that she went out of business due to the recession and requests child and spousal support based on her earning $0.00. Wife is college educated. Can the Court impute income to wife, meaning, can the court order support based on a number wife can earn but in reality does not?
The Court can, in fact, make such orders, but proving that Wife can earn something other than $0.00 is not an easy task. When she represents her income to be $0.00 and is not working, it is up to Husband to prove that she can work - or has the ability to work - and has the opportunity to work. Husband must prove ability and opportunity. To prove "opportunity", there must be some evidence that there are jobs available to her right now and in some cases whether she was actually offered one of those jobs. The best way to prove "ability" and "opportunity" is by way of a vocational examination. The person conducting this examination should be an expert and has testified in court as such. The examiner can in some cases submit a declaration or at trial can testify that Wife has the ability to hold certain jobs and then conducts research into which jobs are actually available out there for which she is qualified. Once the examiner testifies that Wife can work in a specific industry and there are jobs available in that industry for a specific salary, Wife will be hard pressed to rebut this expert testimony.
Vocational Examinations are not cheap, but in many cases, they are worth it. They are a great tool in reducing or eliminating spousal support obligations. However, there is one caveat. Vocational Examinations are only available for proceedings where spousal support is an issue. If the only issue is child support, then the vocational examination is not available as an evidentiary tool. They are most certainly not available in paternity actions. I know that some of my colleagues may disagree with me on this, but vocational examinations are governed by Family Code Section 4331 which is clearly within the section of the Family Code covering spousal support. There is no such corresponding statute in the section governing child support.
So there it is: ABILITY + OPPORTUNITY = IMPUTATION OF INCOME