Voluntary Underemployment In Virginia Support Cases


Posted on June 22nd, 2009, by James Livesay in Divorce, Family Law. Comments Off

Underemployment in Virginia Support CasesIn alimony or child support cases, Virginia law allows the court to find a party is “voluntarily underemployed” and to calculate support based on a higher income than he or she is actually earning. As the Virginia Court of Appeals has written, “[a] court may under appropriate circumstances impute income to a party seeking spousal support. This conclusion logically flows from the principle that one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need…. A spouse may not choose a low paying position that penalizes the other spouse.”

Virginia Code § 20-107.1 directs the trial court to consider as a spousal support factor each party’s earning capacity. For child support, imputed income is a deviation factor listed in Virginia Code § 20-108.1(B)(3). The court must first determine the presumptive guidelines amount, and then deviate from that amount based on any income imputed to one party.

Regarding income imputation, Virginia law provides a specific rule that “[t]he burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available.”

This rule for imputation of income in cases of voluntary underemployment is an “either/or” test: the party seeking imputation must show either (1) evidence of a higher-paying former job, or (2) evidence that more lucrative work is currently available. The party need not show both. The first prong of the test searches the past for a higher-paying former job, while the second prong allows imputation of income based upon the salary which the party hypothetically could earn at a new position.

To meet the second prong, the evidence must be sufficient to “enable the trial judge reasonably to project what amount could be anticipated.” Cases subsequent to this rule have, following this logic, required the party seeking imputation to prove (1) that a higher paying position is presently available, (2) that the allegedly underemployed spouse would probably be hired if he or she applied for the position, and (3) the specific salary offered by the position. Satisfaction of these three requirements allows the trial judge to “reasonably project” the amount to be imputed to the underemployed party.

Example: First Prong- Higher-Paying Former Job

As an example of the first prong: Suzy Doe works a full-time job, earning $45,000 per year. However, just before separating from her husband John, she leaves that full-time job to work a part-time job earning just $20,000 per year. In court, John’s attorney presents evidence that Suzy voluntarily left her job paying $45,000 per year, for a job making only $20,000 per year. Based solely on that evidence, the court may decide to “impute” $25,000 in income to Suzy, and use $45,000 as her income for purposes of calculating support.

Example: Second Prong- More Lucrative Work Is Currently Available

To meet the second prong of the test, the potential payor of support must usually retain the services of a “vocational rehabilitation expert.” This expert would examine the potential payee of support, and form an opinion as to whether the party is indeed voluntarily underemployed, and if so how much income the party could theoretically be earning.

The expert would carefully examine the work history, education level, job skills, and other factors regarding the potentially unemployed party, and match those up with actual jobs in the local job market. Then, the expert would typically identify several real job openings which the party could reasonably expect to land, and state for the benefit of the court the starting salaries or wages for each of these jobs. If the court is convinced by the expert’s presentation, it will typically select an income level in the middle of the range for these jobs, and use that income for the party in calculating support.

For example, Suzy Doe works a part-time job, earning just $20,000 per year, and seeks spousal support from her husband John Doe. John Doe retains the services of a vocational rehabilitation expert, who testifies in court that, based upon her work history and qualifications, Suzy Doe would be competitive for several openings for full-time jobs in the local area, with a salary range of $40,000 – $50,000. If the court finds the expert’s testimony credible, it will likely “impute” $25,000 in income to Suzy, and use $45,000 as her income for purposes of calculating support.

Conclusion
A key difference between the first and second prongs of the test for imputation of income in cases of voluntary underemployment is that the second prong typically requires testimony from a vocational rehabilitation expert, while the first prong does not. To determine whether one or both prongs of the test would be met in your particular support case, you should consult with a qualified family lawyer experienced in voluntary underemployment cases.

The Virginia divorce attorneys at Livesay & Myers, P.C. represent clients in voluntary underemployment cases in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Stafford, Spotsylvania, Fredericksburg and all of Northern Virginia. Contact us to schedule a consultation today.

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About 

Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.



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