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.