Income Imputation for Purposes of Support

Are you involved in a divorce or child custody case involving income for support purposes? An experienced divorce and child custody lawyer and team can guide you through the legal process to assist in exploring your options. You have one bite at the apple in the court system so make it count.

In order to calculate support, courts first must determine income. Income is broadly defined in both C.R.S. §14-10-114(8)(c)(I) and C.R.S §14-10- 115(5)(a)(I). Parties often focus on W-2 income, however many people often have other sources of income or they are self-employed which requires a more detailed analysis. Following is information on other common income sources:

If a party is voluntarily unemployed or underemployed, a court may impute income. This means that the court determines what income a person is capable of earning and takes the position that the person is earning that income for purposes of support. People v. Martinez, 70 P.3d 474 (Colo. 2003). The party must also be found to be shirking a support obligation. The first inquiry is whether the parent is unreasonably foregoing higher paying employment that he or she could obtain. Then if the party is shirking a support obligation, the trial court must determine what the party could reasonably earn. The trial court must examine several factors. For example, among them:

• firing and post-firing conduct;
• the amount of time spent looking for an appropriate position before accepting a lower paying job;
• whether the party refused an employment offer with a higher salary;
• whether the parent looked for a position in his or her field of expertise;
• the availability of appropriate positions;
• prevailing regional wage rates;
• the party’s employment experience;

If a court determines that a parent is voluntarily unemployed or underemployed, the court shall determine and consider the party’s potential income. C.R.S. 14-10-115(b.5)(I). Additionally, if a party is voluntarily unemployed or underemployed, support shall be calculated based on potential income. C.R.S. 14-10-114(c)(IV). However, there is an exception for

a party who is physically or mentally incapacitated, or is caring for a child of the parties under the age of thirty months, or for an incarcerated person serving a sentence of a year or more. C.R.S. 14-10-114(c)(IV).

However, a person is not underemployed if he or she is enrolled full-time in an educational or vocational program, or is employed part-time while enrolled in a part-time educational or vocational program. To be eligible, the program must be reasonably intended to result in a degree or certification within a reasonable period of time; completion of the program will result in a higher income; the program is a good faith career choice; and a person’s participation does not unreasonably reduce the amount of support available to a child. C.R.S. 14-10-115(b.5)(I) (III).

There are a variety of factors to consider in determining potential income. Per C.R.S. 14-10-115(b.5)(I) (II), when determining potential income, the court shall consider generally (note that this is not a verbatim recitation of the statutory factors):

• Assets;
• Residence;
• Employment and earnings history;
• Job skills;
• Education;
• Literacy;
• Age;
• Health;
• Criminal record;
• Job search history;
• Local position availability;
• Local earnings
• Transportation availability.
  

A knowledgeable and experienced divorce and family lawyer and legal team can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating on your behalf. You can focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at https://store.lexisnexis.com/products/colorado-family-law-with-forms-skuSKU02903. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation.