A good example of this is one where the non-custodial parent is in some form of denial about the reasons for the divorce and attempts to punish his or her ex-spouse by withholding child support.
One case in particular involved an alcoholic who had once earned a very good living as a CPA, but eventually his disease made it difficult for him to hold down a job. He took jobs under the table and moved in with a woman who was willing to pay all his bills in exchange for his companionship.
His ex-wife received much of her child support from his unemployment compensation, but after his UE benefits ran out it stopped coming. When she went to court to file a complaint, he came in and claimed to have no income. When the case went in front of a judge, the defendant claimed he could not find a job for the past three years and could not afford to support his children, but the judge looked at his previous income record and became suspicious. She required him to show evidence of his job search and later assigned him with an imputed income that equaled his “earning capacity.”
This kind of decision may not be made in every case, but the courts are getting wise to the number of deadbeat parents who use surreptitious means to avoid their obligations. They will often look for patterns of income and employment to determine the earning capacity. One clue that a parent is trying to avoid child support is to look at their tax filing for the past several years. If their taxable income drops precipitously as soon as they get divorced and stays that way for a few years, it will be a red flag for any child support judge. While the parent may not be able to pay their court-ordered support right away, any unpaid amount will accumulate in arrears.
If you are entitled to receive child support and your ex-spouse is not diligently seeking to earn at least the same amount that they did during marriage, the court has the power to calculate their child support obligation based on “earning capacity” instead of their present income. To be fair, the court will not impute potential income unless the support-obligated parent is able to go out and work. While the court may not order an injured worker to get a job, it will require the support to be paid from unemployment benefits, disability or workers’ compensation.
A Colorado Springs child support attorney can help you make a case for using your ex-spouses’ earning capacity. Evidence will be presented at a hearing that indicates the length of unemployment, lack of action taken to find a job, and number of unpaid child support payments. In many cases, the court will ask the non-paying parent to either be working or provide proof of their active job search by the time of the next court appearance.