Often times in divorce or child support proceedings the court may be forced to impute income on one of the parties. There are circumstances in which imputation of income is legally warranted.
If there is a judicial finding that a party is:
- Voluntarily unemployed,
- Due to bad faith or
- Deliberate effort to suppress income, and
- To avoid child support or other financial obligations
The pertinent D.C. Code § 16-916.01(d)(10) specifically provides:
If the judicial officer finds that a parent is voluntarily unemployed or underemployed as a result of the parent’s bad faith or deliberate effort to suppress income, to avoid or minimize the parent’s child support obligation, or to maximize the other parent’s obligation, the judicial officer may impute income to this parent and calculate the child support obligation based on the imputed income. The judicial officer shall not impute income to a parent who is physically or mentally unable to work or who is receiving means-tested public assistance benefits. The judicial officer shall issue written factual findings stating the reasons for imputing income at the specified amount.
The Court of Appeals recently has also addressed the legality of imputation of income during a divorce proceedings in Saxon v. Zirkle.
Ms. Saxon had stopped working after the separation and although previously she had significant income as a real estate agent, reported none after separation claiming to be devoting her time to home schooling their child even after the child had enrolled in school.
The evidence at trial also supported that she could have at minimum obtained a job as a substitute teacher earning about 24k in income as she has already approached multiple school to gain employment.
The trial Court did not necessarily place the burden to show voluntarily unemployment on Zirkie or the moving party as was required nevertheless the Court of Appeals held that the outcome would have been the same, that it was inherent based on the evidence at trial and the changed behavior after the separation that Saxon:
- Was voluntarily unemployed and
- Such was in bad faith even though
- There were no direct evidence supporting bad faith.
Moreover, the issue of bad faith and lack of direct evidence was never raised at the trial level by Saxon’s counsel and in effect served as an estoppel on appeal.
Thus the imputation of income and the evidence warranting imposition of income turns on facts of the case. Here Saxon had admitted stopping work after separation and evidence supported that although capable, she was not diligent or willing to seek employment and the Court had no choice but to attribute that no voluntarily unemployment.