intentional underemployment

[dadofgreatkid]

What is the name of your state (only U.S. law)? NH

My ex-wife and I have week on, week off custody of our 8 year old son with no child support being paid to either party.

She filed for sole legal custody, primary physical custody, and child support in April of 2008. She has been told by her lawyer and the GAL that she has no cause to change our current agreement.

We have been attending co-parenting counseling for a few months. At yesterdays session I asked her why she was continuing this case in court when she knew that nothing would change from our current agreement. She blatantly said that she wanted to get as much child support as she could.

I asked her why she didn't work a full time job if she was having financial problems (she has worked part-time as a massage therapist for the past 3 years). She responded that she could make "WAY more money" than she does but that she doesn't want to work more because she likes staying home with her kids (she is remarried with another child). She went so far as to say that she could make "more money" than I do if she "wanted to". That to me, sounds exactly like an admission that she is intentionally underemployed.

My question is this: Will any of this help me in court? I know the GAL is going to speak with the therapist, but I don't think the GAL cares about the child support aspect of the case so I'm not sure it would help that part of the case.

Should I bother to spend the legal fees fighting the amount, or will a judge just see that her salary is so much lower than mine and order me to pay the full amount? I have no interest in spending even MORE money in legal fees to end up exactly where I would be now, so maybe I should just gave in like usual and gave her the money she wants?

 

[CourtClerk]

You can argue that she is intentionally underemploying herself, but you're going to have to prove she made those statements, because the chances that she's going to repeat them in front of the judge are slim.

 

[dadofgreatkid]

You can argue that she is intentionally underemploying herself, but you're going to have to prove she made those statements, because the chances that she's going to repeat them in front of the judge are slim.

I'm not worried about proving that she made the statements. She says the same thing to anyone who will listen - including the GAL. My lawyer is confident she will say the same things during her deposition.

I'm just worried that a judge wont care that she's intentionally underemployed. If they just look at the figures and say "Wow! She's making X and he's making 4X so he needs to give her full calculation support even though she's only making X because she works 3 hours a week."

So I guess my question is: from experience, do drastic differences in income make intentional underemployment a moot argument?

 

[CourtClerk]

I'm not worried about proving that she made the statements. She says the same thing to anyone who will listen - including the GAL. My lawyer is confident she will say the same things during her deposition.

The GAL doesn't get involved in child support issues.

I'm just worried that a judge wont care that she's intentionally underemployed. If they just look at the figures and say "Wow! She's making X and he's making 4X so he needs to give her full calculation support even though she's only making X because she works 3 hours a week."

That's when your attorney needs to show you why you are paying their fee. That's when they get to show their stuff.... show me what you're worth. Ya know?

So I guess my question is: from experience, do drastic differences in income make intentional underemployment a moot argument?

Your attorney needs to argue the point.

 

[dadofgreatkid]

The GAL doesn't get involved in child support issues.

That's when your attorney needs to show you why you are paying their fee. That's when they get to show their stuff.... show me what you're worth. Ya know?

Your attorney needs to argue the point.

Thanks for the advice!

 

[CJane]

FYI - MANY massage therapists work 'part-time' (as in many fewer hours than 40) for many reasons.

Also, MANY people like to talk about how much money they COULD make IF something were to happen. That's not proof she's underemployed or that such underemployment is intentional.

 

[nextwife]

FYI - MANY massage therapists work 'part-time' (as in many fewer hours than 40) for many reasons.

Also, MANY people like to talk about how much money they COULD make IF something were to happen. That's not proof she's underemployed or that such underemployment is intentional.

Choosing to not earn a full time income is being underemployed.

 

[Ohiogal]

FYI - MANY massage therapists work 'part-time' (as in many fewer hours than 40) for many reasons.

Also, MANY people like to talk about how much money they COULD make IF something were to happen. That's not proof she's underemployed or that such underemployment is intentional.

Yeah. Like I COULD make a lot more money IF some of my clients were not deadbeats and I didn't have to waste time pursuing them to collect.

 

[AdvocateSupreme]

February 24, 2009

RE: VOLUNTARY UNDEREMPLOYMENT IN NEW HAMPSHIRE

Dear dadofgreatkid:

First, to obtain a modification of child support obligations, the moving party must show a change in the circumstances of the parties that makes the original order improper or unfair. Richelson v. Richelson, 130 N.H. 137, 146, 536 A.2d 176, 182 (1987). The change in circumstances must be substantial. McRae v. McRae, 115 N.H. 353, 354, 341 A.2d 762, 763 (1975); Fortuna v. Fortuna, 103 N.H. 547, 549, 176 A.2d 708, 710 (1961). In determining whether such a substantial change of circumstances exists, the trial court must evaluate the needs of the parties and their respective abilities to meet those needs. Butterick v. Butterick, 127 N.H. 731, 736, 506 A.2d 335, 338 (1986).

Second, “[t]he court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.” RSA 458-C: 2, IV (a).

Third, you mentioned in your post that your ex-spouse is “remarried with another child.” You should know that in New Hampshire the court may consider the income of your ex-spouse’s husband in calculating child support if your ex-spouse is voluntarily underemployed or unemployed. See RSA 458-C: 2, IV (b) (“The income of either parent's current spouse shall not be considered as gross income to the parent unless the parent resigns from or refuses employment or is voluntarily unemployed or underemployed, in which case the income of the spouse shall be imputed to the parent to the extent that the parent had earned income in his or her usual employment.”) (Boldness added.)

Accordingly, your ex-spouse’s underemployment may actually reduce the child support order currently in effect.

 

[haiku]

I would definitely be more worried at her attempt become the custodial parent.

In New Hampshire, the custodial can be a pauper or a millionaire, the only income that counts for child support purposes will be the NCP's.

If there were a possibility of losing this arrangement, then I would consider the deal she put on the table...

As far as having to pay MORE in a 50-50 arrangement, Thats where your lawyer has to prove that she is intentionally under employed, so she would be imputed at a higher income that what she is showing on paper, and also whether or not you can compel the judge to take in what her husband is contributing to her household expenses, which takes some of her burden away. Which may or may not be possible given the current economy and where you might live in NH.

 

[EHFAR]

I'm just worried that a judge wont care that she's intentionally underemployed. If they just look at the figures and say "Wow! She's making X and he's making 4X so he needs to give her full calculation support even though she's only making X because she works 3 hours a week."

So I guess my question is: from experience, do drastic differences in income make intentional underemployment a moot argument?

It's very important that you guys haven't been to court in the past over child support since the time she became voluntarily underemployed/unemployed. If you did, and you never raised the issue of her underemployment then, then you will not be able to raise the issue now.

 

[dadofgreatkid]

I would definitely be more worried at her attempt become the custodial parent.

Originally that was my main concern, but the GAL has made it clear that my ex-wife will NOT be receiving anymore custody than she currently has.

In fact, the GAL stated in her report that our son would "likely benefit from spending school weeks in a single home" and he will be staying in the school district which I live in, which potentially means the GAL would recommend that he live with me primarily.

I still want to keep the week on, week off arrangement we currently have because he's been used to that for the past 5 years though.

 

[dadofgreatkid]

It's very important that you guys haven't been to court in the past over child support since the time she became voluntarily underemployed/unemployed. If you did, and you never raised the issue of her underemployment then, then you will not be able to raise the issue now.

We haven't been to court since our divorce in 2003. She has been working part-time for 3 years and has not mentioned child support before until this custody dispute began.

She originally said she was only asking for the child support in anticipation of having full custody (she assumed she would receive the full custody she petitioned for). Now that it's clear she will not be receiving full custody and its clear that our son will not be changing to her school district (which is what started this whole thing) she is requesting the child support anyway.

Unfortunately, you can't prove in court that someone is just trying to be hurtful and difficult because they didn't get their way.

 

[StampGirl]

Originally that was my main concern, but the GAL has made it clear that my ex-wife will NOT be receiving anymore custody than she currently has.

In fact, the GAL stated in her report that our son would "likely benefit from spending school weeks in a single home" and he will be staying in the school district which I live in, which potentially means the GAL would recommend that he live with me primarily.

I still want to keep the week on, week off arrangement we currently have because he's been used to that for the past 5 years though.

You never know what a judge will do or say. Trust me. He can take what the GAL has to say into account BUT the final decision is the judges.

If in your state they only take into account the NCP's income (are you considered the NCP) then making a big deal about her underemployment is pointless.

Your attorney needs to be aggressive in proving she is underemployed if it makes a difference.

 

[CJane]

Choosing to not earn a full time income is being underemployed.

You don't know that she isn't earning a 'full time income'. Dad insists that she's working less than 40 hours/week and is therefore under-employed. That's not necessarily accurate.