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What if a parent is voluntarily unemployed or underemployed?

5/13/2015

 
7.  Welcome back!  The question for this Lesson is:

            What if a parent is voluntarily unemployed or underemployed?

            KRS 403.212(2)(d) deals with this problem.  I think we just need to read it together first to get a feel for how to tackle this problem.

            "If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed without finding that the parent intended to avoid or refuse the child support obligations.

            So, it is easy enough to figure out, I think, if the parent is taking care of an infant.  The real challenge is the spouse who gets fired from a good job where he earned $20,000 per month and now contends he can only find a job which would pay him $4,000 per month.  Is this voluntary underemployment?  In spite of his super-human efforts to find another $20,000 per month job, the law requires the judge to decide whether he is voluntarily underemployed.  It certainly is not the children's fault, or the spouse's fault, that he got himself arrested for embezzlement, now is it? 

            What if a spouse is precluded from finding any employment at all?  His boss shot him when he learned of the embezzlement, and since he is now totally disabled, he could not work even if someone were to hire him.

            What do you think the judge would do with that one? Every case is fact-specific, but I know what I would have done with that one, and the father would not be happy about my ruling.

            Now you know a little bit about how monthly gross income is determined if a parent is voluntarily underemployed or unemployed. Once again, we see uncertainty, so if it is necessary to go to court for a ruling, one of the parties will really have a problem and the other will be marginally satisfied. If both parties know the law about child support, an agreement is far more likely.


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    Judge John Schrader is a Husband, a Father, and a Lexington Attorney providing legal and mediation services in the office of Sherrow, Sutherland & Associates, P.S.C.

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    CHILD SUPPORT TABLE OF CONTENTS
    1. Who is required to pay child support in Kentucky?
    Publish Date: April 29, 2015
    2. What do I do to obtain a Kentucky Child Support Order?

    Publish Date: April 29, 2015
    3. How is child support calculated under the guidelines?
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    4. What is considered “gross income” for child support calculations?
    Publish Date: May 5, 2015
    5. How do I find out what the other parent's income is?
    Publish Date: May 6, 2015
    6. What about income from self-employment or business income?
    Publish Date: May 7, 2015
    7. What if a parent is voluntarily unemployed or underemployed?
    Publish Date: May 13, 2015
    8. What if one parent is paying maintenance?
    Publish Date: May 13, 2015
    9. Is there an adjustment to a parent's "gross income" if he or she is supporting a prior-born
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    Publish Date: May 13, 2015
    10. What happens in a split custody arrangement where Sissy lives with Mother and Jr. lives with Father?
    Publish Date: May 20, 2015
    11. When can a judge deviate from the child support “guidelines”?
    Publish Date: May 20, 2015
    12. When the parents' combined monthly adjusted gross income exceeds $15,000 per month, how is child support calculated?
    Publish Date: May 20, 2015
    13. How does Kentucky law deal with the big-ticket item of childcare expense?
    Publish Date: May 27, 2015
    14. Do parents have to maintain private health insurance for their child, and if so, who pays
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    Publish Date: May 27, 2015
    15. Who pays for deductibles and co-pays and how do we deal with extraordinary medical expenses not covered by the insurance?
    Publish Date: May 27, 2015
    16. How does a parent actually recover the proportionate share of extraordinary medical expenses from the other parent?
    Publish Date: June 3, 2015
    17. What if I find out the other parent has not been paying for childcare even though I have been paying for my share?
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    18. How do I get a modification of child support in Kentucky?
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    19. When does child support terminate?
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    20. Is a Wage Assignment Order required for child support in Kentucky?

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    21. What does the court do about child support when the child spends a considerable amount of time with both parents?
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    22. What is involved in collection of child support?
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    23. How does the law deal with enforcement of the child support order when my ex and I
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    24. If Kentucky does not have jurisdiction over the other parent of my child, what is the UIFSA process to deal with establishment, enforcement and modification of child support
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    Publish Date: June 17, 2015
    25. What about parents who were not husband and wife to each other when their child was
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    Publish Date: June 24, 2015
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