09 Jul Underemployment and Divorce

When an individual involved in divorce proceedings is not employed in accordance with their skillset, this is referred to as underemployment. This financial disadvantage can have a large impact on how divorce proceedings play out when it comes to maintenance or child support costs.

Involuntary Underemployment

Involuntary underemployment refers to someone who is forced to hold a job below their potential pay scale because of circumstances like job loss or injury. This party will potentially be required to provide a log of job-seeking activity, or medical proof of the inability to work at their determined skill level. If the party can prove that underemployment is in fact not a choice, changes to maintenance and child support payments that accrue after the obligor files a motion to modify them may be considered by the court.

When determining maintenance or child support payments, the judge will also look at underemployment history, specifically whether or not a spouse was underemployed throughout the marriage. Additionally, employment commensurate with experience may not be required immediately if the spouse is the children’s primary caretaker. In either case, a judge may decide to change payments on a temporary basis and readjust as/if circumstances change.

Voluntary Underemployment

Voluntary underemployment refers to someone who chooses to work below their skill level and pay scale. This can include quitting a job to for a lower paying role, denying a promotion or raise, etc. This is commonly done when one party wants to reduce their income to lower maintenance and child support payments. If necessary, an expert witness will be brought in to testify about the spouse’s vocational abilities.

If underemployment is found to be voluntary, the courts might choose not to reduce maintenance and child support costs, instead establishing the payments based on the party’s full employment potential rather than their current income.  This concept is known as “imputing” income.

As each divorce has its own unique circumstances, these determinations will not be uniform in each case. Understanding the difference between involuntary and voluntary underemployment can help clarify who may qualify for a maintenance or child support reduction. The best way to ensure fair proceedings is to consult with an experienced family law attorney.