Decisions about whether and how much child support a divorcing spouse or co-parent should pay often depend on both how much money he or she makes or could make. The latter factor, usually referred to as “earning capacity,” can be difficult to quantify in many cases, and even more so when the parent’s immigration status prevents them from legally working. The state’s First District Court of Appeals recently considered one such case.
Husband filed for divorce from Wife in 2011, and the parties agreed the following year to a stipulation where Wife retained sole physical custody of the couple’s only child. The stipulation also gave Husband visitation rights but didn’t require him to pay child support. In 2013, Husband filed a motion seeking shared physical custody and for the Wife to pay him child support. Husband explained to the court that he was an undocumented immigrant who had overstayed his visa. Because of this status, Husband said he wasn’t able to work as a traditional employee. Nevertheless, he said that he’d worked as a carpenter for roughly 20 years and was planning to be a self-employed carpenter.
At the time, Husband said he was making about $750 per month. Opposing the child support request, Wife said the trial court should impute to him an income of $2,600 per week based on past earnings. She pointed to a 2011 income declaration in which Husband said he was making $65 an hour as a carpenter and working 40 hours per week. Instead, the court imputed a “minimum wage earning capacity” to Husband and awarded him 15 percent custody of the child. The court also ordered Wife to pay Husband $54 a month in child support. Husband appealed the decision.
The First District agreed with the trial court. As the Court explained, California law requires judges to make support orders based on a “complex algebraic formula” that takes the parties’ incomes and time with the child into account. The law also authorizes courts to impute income to a parent based on his or her earning capacity. “Earning capacity is composed of the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications, and an opportunity to work which means an employer who is willing to hire,” the Court said.
Here, the Court said the trial judge didn’t err in finding that Husband had an “opportunity to work” despite his immigration status. Indeed, the court noted that Husband provided his own evidence showing that he was making about $750 per month and said that he intended to be a self-employed furniture maker. He also stated in the 2011 declaration that he’d been making $65 an hour. “The trial court could reasonably rely on this evidence to conclude [Husband] has the opportunity to work more than he was working at the time of the ruling, such that he could be earning a modest income equivalent to minimum wage employment,” the Court concluded.
Child support is a complicated legal issue that largely depends on the individual circumstances of each case, so it’s important to consider these and other related matters in consultation with an experienced family law attorney. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.
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