August 1, 2017
When a marriage is ending, one of the first issues that must be addressed is the amount of support payments that must be paid. The first task in calculating support, whether it be spousal support, alimony pendente lite or child support, is calculating the parties’ income available for support. The Pennsylvania support statute provides a very broad definition of income which includes “income from any source.” For many people, their income consists primarily of the wages they receive from their employer and perhaps some additional investment income. For others, including those who own business interests, the calculation of income can be multifaceted.
An issue that is raised in many support cases is what happens if one of the parties is under-employed or voluntarily unemployed. This situation is addressed by Pennsylvania Rule of Civil Procedure 1920.16-2(d)(4) which states as follows:
“Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.”
In short, this section of our Civil Court Rules tells us that, for support calculation purposes, if someone is voluntarily not working or working only part-time, that person can be assigned an income above what they actually take home when support is calculated. The same theory applies if someone is “underemployed” in that they are working full time, but could earn more at another position based on their historical earnings and education/expertise. In the court’s eyes, it is not acceptable to manipulate the support calculations to your benefit by minimizing your income. This concept applies to both the individual paying support and the individual receiving support.
Earning capacity litigation can be complex and involve the retention of vocational experts to determine what a party’s earnings could be. Some courts invite the opinions of head hunters to weigh in on what positions are realistically available. The party being scrutinized will have to supply their historical income as well as education and professional training. The imputation of an earning capacity can be have a dramatic effect on your support calculations. If you believe that you and/or the other party in your support case could be subject to an assigned earning capacity, I strongly recommend that you speak with an attorney who regularly handles support cases in your home county to discuss whether your situation warrants an earning capacity claim.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.