Unemployment and Underemployment in Divorce

Unemployment and Underemployment in Divorce

Posted on July 20th, 2018

A major topic that is bound to come up during the divorce process and child custody agreements is the job status of each spouse. Typically, a spouse or parent will be considered employed, underemployed, or unemployed. The current job status of each spouse is an important factor for the judge to take into account when determining alimony or child support payments. While there are many instances where both spouses have full-time jobs outside of the home, there will typically be one spouse who earns more than the other. This is especially the case when one spouse is underemployed.

Underemployment is when one spouse is receiving less than their full earning capacity. This might look like having a part-time job instead of a full-time job, or not working outside of the home at all. When a spouse is voluntarily underemployed or unemployed, the court will determine alimony differently than if they were working less involuntarily. To do this, the court will “impute” an income amount to that spouse based on how much they could or should be earning based on their qualifications and earning potential. To calculate imputed income, a judge will look at the underemployed spouse’s age, education level, previous work history, and marketable skills or qualifications. Even though an unemployed spouse’s income may be nothing in the present moment, the court will instead calculate a fair and appropriate income to use in calculating alimony or child support based on the above factors.

Under Nevada law, a judge is only allowed to impute income to a parent who is voluntarily underemployed or unemployed. This means that if someone is involuntarily underemployed — for instance, if they are laid off from their job — the court will not impute an income for them. If this is the case for you personally, make sure to keep records of your job status so you can make a solid case for yourself.

There are also the instances in which one spouse, usually the higher earning spouse, will be willfully unemployed. This means that they have chosen to quit their job or take a lesser-paying position in order to avoid paying support to their spouse or child. Rarely will this work, because a judge can review someone’s previous employment earnings. The court can choose impute the spouse’s income as a higher one based on their earlier proven earning potential.

Whether you are the higher earning spouse or the underemployed spouse, it’s crucial to have a divorce attorney by your side through the complex processes of divorce, alimony, and child support. Having an attorney to help you calculate variables and negotiate your options can ensure that the fair and appropriate amount is awarded and each party is adequately satisfied with the results. For a personal consultation, call us today.