My ex-wife has a Masters Degree and a year ago graduated and received a Phd from a prestigious university. Glassdoor shows the average salary for an assistant professor at $82K a year in this area, but she does not appear to be trying hard to get a job as she lives with her wealthy boyfriend. At present she voluntarily works part-time at a low wage job. She refuses to discuss changes in child support concerning our child that lives 60% at my home and 40% of the time with her at her boyfriend's home. (I have sent her several emails, USPS certified letters about this, and she responds in writing in the negative.) The Child support was set in 2014 at $1100 a month, when her student salary was very low while she was finishing up her Phd. Now that she has graduated and her new imputed salary is likely much higher, closer to the $82K mentioned above, can I seek a modification in child support and my attorneys fees? (My salary of $110K has not changed since 2014).
Child support can be modified by a judge whenever there has been a material change of financial circumstances. It seems reasonable that with the new PhD, your ex-wife probably has a higher earning capacity now than what her student salary was when child support was last calculated. Because your ex-wife does not currently have a job as an assistant professor, the burden will be on you to prove what her new earning capacity is. You will need Vocational Rehabilitation expert to provide expert witness testimony at the hearing. The expert witness will gather information about your ex-wife's education and work experience, and then essentially find jobs in our region that her resume qualifies her for, and come to court and testify about the range of salaries that she could expect. For instance, a newly minted PhD may not be expected to earn the salary of the "average" assistant professor in your ex-wife's field--that may require some years of experience that she does not have. On the other side of the case, your ex-wife will have to prove that her job search has been appropriately diligent (what jobs is she looking for? where is she looking? how many resumes sent? how many interview? is she asking for too much money? etc.), reasonable and in good faith, and the judge will decide whether or not, under the circumstances, to impute income to her and at what level. The judge can also look at the reasonableness and availability of child care services, depending on the age and the needs of your child. So, yes, you can seek a modification of child support, but you should speak with a child support attorney practicing near you to understand the likelihood of success, and to run potential child support guideline scenarios to help you determine whether or not it makes sense to file for the modification.
THIS IS NOT LEGAL ADVICE AND NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED.
Va. Code 20-108.1 provides " there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded."
"In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case."
One of the factors to rebut the presumption is "3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party's earning potential;"
I agree generally with Mr. Colton's response. To simplify, you CAN file a motion to amend support. You would then have the burden of showing two things: First, that there has been a material change of circumstances since the last order; and second (and only if you win on the first point), what is the proper amount of support under the present circumstances. In most cases the child support guidelines (which in your case would be the SHARED child support guidelines) would answer the second question.
If you are going to try to impute income to her (have the Court based support on more income that she actually earns under the theory that she is voluntarily unemployed, or under-employed) you would have to prove the voluntary unemployment or under-employment AND what she should be earning. Almost always this involves either showing evidence of recent employment by her at the higher rate OR use of a vocational expert to present evidence of earning capacity.
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