Kevin Qualls Family Law
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Courts may consider "earning capacity" in child support cases

Previous posts on this blog have talked about how Orange County, California courts, consistent with state law, ordinarily are going to determine child support based on what each parent actually makes in income from various sources and will back out certain qualified expenses. Some might wonder, however, what would happen if a parent, wishing to be spiteful or just feeling more freedom to do what he or she wants in life, decides to quit his or her good paying job and either not work at all or work at a job that pays a lot less. Especially if this is just part of an effort to avoid paying child support, such behavior can be very frustrating for the other parent who is trying to make sure the children have their financial needs met.

The good news is that judges have discretion to consider what a parent could be earning, or "earning capacity" either in lieu of or in addition to what the parent is actually making. This does not mean that a judge would second guess a parent who has honestly lost his or her job and is just having a hard time finding another job that pays as well.

But, the rule does give judges the option to consider why a person is not working or is working at a job that pays less. Given that parents in California have a fundamental obligation to support their children, a judge can incentivize a parent to get the best job he or she can be requiring they pay support based on what someone of their qualifications could earn rather than what the parent is actually brining in.

It might not be easy though, to convince a judge that the other parent really could be making more. After all, paychecks are easy to see and understand, and it can be hard to grasp what exactly the other parent should be doing beyond what he or she is already doing to get a better job.

Still, particularly with the help of an experienced family law attorney, an Orange County parent may be able to get the support their children actually deserve.

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