Child Support: Wages/Salary v. Earning Capacity

By Matthew T. Hovey, Esquire

In making a determination for an award of Child Support, with respect to a party’s work income, you can get the Court to consider more than the person’s wages or salary. According to Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4):

“Ordinarily, either party to a support action who willfully fails to obtain appropriate employment will be considered to have 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 earning capacity.”

Q: What does this mean for you if you have filed for support or need to modify a support order?

A: The other parent (or spouse, if its for spousal support/APL [alimony pendente lite]) cannot avoid his/her obligation by voluntarily reducing his/her income. The rationale is that the party has an obligation to the child (or spouse). When you have a child, your priorities must change and the law reflects that belief. For example, Father and Mother have a Son. Father owes Mother $1000 per month in child support for Son. Father decides he wants to quit his job and go back to school. Father goes back to school and then files for a modification of the Support Order because his monthly income has dramatically dropped. The Court, if Mother argues appropriately, will deny Father’s modification, however, because he voluntarily decreased his income. As a result, while his income is now $0 per month, the Court will examine the circumstances and likely assign him an earning capacity equal to what he was previously earning. Father will still be obligated to pay $1000 per month whether he is in school or not.

Q: What some other common examples of willfully failing to obtain appropriate income?

A: Other examples include (a) early retirement, (b) accepting a voluntary salary decrease, and© failing to make reasonable attempts to obtain new employment, if the other party lost his/her job.

Q: Will the Court assign minimum wage as an earning capacity?

A: Yes, definitely. If you are involved in a situation where custody is shared, you should consider this provision of the law. The opposing party should be working when he/she does not have the child. As I mentioned, children change people’s priorities. A parent must provide for his/her child and, within reasonable limitations, cannot spend his/her free time partying and having fun.

Q: What should I do if the other party subject to my Support Order may have willfully failed to obtain appropriate income?

Consult with an attorney. An attorney will be able to help you conduct the necessary research and structure your argument to convince the Court that it needs to utilize an earning capacity, rather than the other party’s current income. This is a valuable provision of the law and capable of holding irresponsible parents accountable for their obligation to the child (or spouse, in other support situations).

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