When parents are going through a divorce, it can bring out the worst in one or both of them. All too often, a mom or dad can lose sight of the fact that their bitterness and anger towards the other parent should not impact the divorce terms relating to their children. A parent who is ordered to pay child support may want to deprive the other parent of the income. One tactic an obligated parent may try is underemployment or accepting a lower-paying position, to have the least amount of support ordered. So, what do you do if your ex is intentionally underemployed to avoid paying more child support?
Wisconsin Child Support
During a divorce case, Wisconsin family courts are charged with seeing that minor children will have the support they need going forward. Determining the correct child support amount and who should be obligated is a statutory calculation. This support rarely covers all of a child’s expenses, but the Wisconsin formulas take numerous factors into consideration to try and balance how much a child will need versus what a parent can pay.
The court will calculate how much time a child spends with each parent during the placement as well as other factors in determining the amount that will be needed for their everyday care and expenses.
- When one parent has primary placement, it means the other, or non-primary, parent has the child less than 25% of the annual overnights. In this circumstance, the non-primary parent usually pays child support based on a flat percentage of his or her gross income. When there is one child, this is 17% of gross income. For two children it is 25%. Etc.
- If the parents have shared placement of children, with both parents having the children at least 25% of the time, the parent who has less time may still be obligated to pay the parent who has the child more, however, both parents’ incomes will be considered, and the outcome is dependent upon both time AND income.
- If parents have split placement, that means parents are each primary for at least one of the couple’s children. If parents each have primary placement of one of their children, a court would consider the parents’ respective incomes to calculate the support amount, and the parent with the higher support amount would pay the other the difference.
Underemployment and Wisconsin Child Support
When a parent is ordered to pay child support and then resigns or voluntarily reduces his or her hours or position, a Wisconsin court is permitted to impute income to that parent.
By doing so, the court figures out what amount a parent is capable of earning (earning capacity), rather than their actual earnings, and this prevents that parent from avoiding their obligation to pay child support by voluntarily lowering their income. The court will consider:
- The parent’s education, job training, and recent employment experience;
- The income the parent earned in previous periods of employment;
- The parent’s current physical and mental health;
- The parent’s history of childcare responsibilities as the parent with primary physical placement; and
- The availability of work in or near the parent’s community.
The court can also look at a parent’s financial assets such as bank and investment accounts, 401ks, life insurance policies, business interests, investments, and net proceeds resulting from workers’ compensation benefits or personal injury awards. Underperforming assets such as rental property that a parent chooses not to rent out may also be considered as well as any property a parent may have diverted to avoid paying support.
Keep in mind, being underemployed as a purposeful attempt to avoid paying child support is NOT the same thing as being paid less now than in earlier years, because of a recent return to the marketplace after having been unemployed for whatever reason. Intentions matter.
Contact a Wisconsin Family Law Attorney
Proving that an obligated parent is intentionally underemployed requires evidence and can be complicated. Therefore, it’s crucial to work with an experienced family law attorney who can help you evaluate your case and gather the right information. Attorney Karyn Youso of First Look Family Law has extensive family law experience and can help you assess your child support case and determine your next steps. Come in, and let’s talk about your situation. Contact us today.
