Imputation of Income in California Family Code Statutes
Courts have the discretion to consider the "earning capacity" of a parent in both child and spousal support cases. California Family Code Section 4058 states, "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." Family Code Section 4320 lists several factors the Court may consider when awarding spousal support. Family Code Section 4320(2)(c) states, "In ordering spousal support under this part, the court shall consider all the following circumstances...the ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living." The legal standard for the imputation of income are the same for child and spousal support with one exception; imputation of income for spousal support does not require the court to consider the children's best interests.
Earning Capacity - Ability and Opportunity to Earn
The Court in Regnery (1989) 214 Cal. App. 3d 1367, outlined the initial three prong test for earning capacity. (1) the ability to work; (2) the willingness to work; and (3) the opportunity to work. After the decision in Regnery, Courts modified the test into a two prong test (removing willingness to work as a prong).
Ability has been defined as factors such as age, occupation, skills, education, health, background, work experience and qualifications.
Opportunity to work is present if there is a reasonable likelihood that the party could, with reasonable effort, apply his or her education, skills and training to produce income.
How to Impute Income For Child and Spousal Support.
To impute income to a party in a child and/or spousal support case you may hire a Vocational Expert to perform a Vocational Evaluation. A vocational evaluation is the process used to assess a person's current or future employability and wage earning capacity for the court.
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