There is strong public policy in favor of providing adequate child support, such that court often ‘impute income’ to a parent, in order to meet the needs of the child. Marriage of Destein (2001) 91 CA4th 1385, 1391.
While there is no statute to point to what defines earning capacity, its meaning has been well established in Marriage of Regnery (1989) 214 CA3d 1367, 1372. State v Vargas (1999) 70 CA4th 1123, 1125. The Regnery court found that one can be imputed when unemployed or underemployed parent. They adopted a three-part test allowing imputation when the parent has (1) the ability to work (taking into account factors such as age, occupation, skill, education, health, background, job experience, and qualifications, and (2) an opportunity to work (an employer willing to hire), but (3) lacks the willingness to work consistent with ability and opportunity. 214 CA3d at 1372. Courts after Regenery recognized that the “willingness” element of the test should be disregarded by the courts and now use a two-prong test: ability and opportunity. Marriage of Bardzik (2008) 165 CA4th 1291, 1302.
Imputation of earned income must be based on proof, and not derived “from thin air.” Marriage of Cohn (1998) 65 CA4th 923, 931. Marriage of Berger (2009) 170 CA4th 1070, 1079. Therefore, the amount imputed must are based on a parent’s current circumstances. Marriage of Smith (2001) 90 CA4th 74, 83. Therefore, if you believe a parent is purposefully unemployed or underemployed, it is essential that you speak with an attorney who can analyze whether you have a strong case for imputation.
Information that can support imputation of income to a parent’s ability to earn a certain income include a parent’s resume, education, past job experience, past income, and a vocational expert’s testimony. Marriage of Bardzik (2008) 165 CA4th 1291, 1306.
Additionally, a parent seeking to impute income with need to provide proof of an opportunity to earn such as: job listings for persons with credentials similar to those of the parent, opinion testimony familiar with the field the parent works in, and pay scales. 165 CA4th at 1309.
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