Earning Capacity and the Ability to Earn

Let’s assume that you are “entitled” to receive support. What if your spouse loses his or her job? Further, what if your spouse then doesn’t attempt to find work? Is your spouse being less than diligent in seeking work? If all the answers are "yes," the court has the power to order support based on your spouse’s ability to earn.

Now, let’s look at the other point of view and put this in perspective. Before the court would consider “imputing” income to your spouse, he or she (1) must have skills and (2) must not be somehow prevented from applying them through no fault of his or her own. The court won’t order an injured worker to go out and get a job; it will, however, order that support be paid out of disability, workers’ compensation or unemployment benefits.

Your spouse will be allowed a reasonable time to find a new job after leaving, quitting or losing his or her job. Most people are naturally concerned with their well being and will pursue employment diligently. However, if your spouse starts trying to drag you down with him or her, get busy. Start by showing to the court the lack of support payments, the excuse he or she has lost his job/business and the amount of time that has gone by. Present this at a hearing set for this purpose without waiting for trial.

A tip? Win with minimum delay by showing that your spouse’s conduct is unreasonable also. Your spouse may admit to not looking, not caring or not trying. Seldom does a spouse admit this directly. The indirect method is more effective. Your spouse will admit to being unaware of work available in the community, as shown by the evidence you produce, indirectly showing a lack of diligence. It is natural to admit this because your spouse would be in a worse position by saying he or she knew of the job. If you do your work the court will do its part in motivating your spouse to accept available employment.

Nice work. You have shown that suitable work is available. You’ll get an order requiring your spouse to be working by the next hearing, or show to the court the efforts made to get work. If this continues, you’ll get a support order based on what your spouse would earn if working. Your spouse’s conduct is truly counter-productive, and the sooner he or she realizes this the better; the order can’t be discharged in bankruptcy, sometimes the next stop.