By Marie E. Matyjaszek
People file for child support modifications all the time, hoping to get an increase to help with the adjustment of rising prices, for just about everything, or a decrease, due to a change in income or job loss. Whatever the reason for the petition, it’s rare to have both parties happy with the outcome. And to top it off, just because you ask for child support to be increased doesn’t mean that will be the result – if the support formula recommends a decrease, so be it. The same situation plays out if one party asks for support to be lowered – if the formula recommends an increase, there you have it.
Hard feelings don’t even begin to explain the reaction when that happens.
Child support frustrations heighten when a party is imputed, or assigned potential income. The support formula manual allows for imputation when a parent is “voluntarily unemployed or underemployed, or has an unexercised ability to earn.” See Michigan Child Support Formula (MCSF) 2017 §2.01(G). Basically, it boils down to the court being able to “pretend” that a parent makes a specific amount of money for the purposes of child support. The parent doesn’t actually earn the money attributed to him, or he may earn a portion of it, but not as much as the total figure that is used to calculate support.
According to the MCSF Manual, imputation should not exceed 40 hours a week or include overtime/shift premiums. If you are already working 35+ hours a week, imputation should not be utilized. Not surprisingly, in order for the court to assign a party potential income, it must analyze a set of 11 factors (what would a court document be without factors anyway?).
The imputation “dos” and “don’ts” are found in the MCSF Manual, Section 2.01(G)(2)(a)-(k). I will examine these factors in this article and the next – let’s begin!
The first factor requires the court to examine the past employment experience and work history of a party, to include why the person is no longer employed. We all know people who just can’t keep a job, and it’s always someone else’s fault. Well, if your ex was fired for showing up to work intoxicated for the third time, that’s a legitimate fact to consider for imputation, as it should be. This factor makes the most sense – what did you do in the past and why aren’t you doing it anymore. How much experience a person has at a particular job is also telling as to what they could realistically earn in the future.
The second factor focuses on educational background, training and skills.
In theory, the higher the degree, the more money can be made, right? While that may not always be true (think of Bill Gates), in general, people with a doctorate degree have the potential to earn more than those with a high school diploma.
Next, the court must look at a party’s physical or mental disabilities that impact the “ability to work, or to obtain or maintain gainful employment.” MCSF Manual §2.01(G)(2)(c).
This is the factor that causes the most arguments at my hearings – inevitably, if one party professes to be disabled, the other is absolutely certain that it’s all a lie, because the disabled party can do x, y and z on a regular basis. It’s at times hard for me determine the veracity of this type of testimony, in particular from individuals who represent themselves, and don’t know what type of documents to bring, or witnesses to call for the hearing. When a party is receiving a disability benefit, it can quiet the questioning by the other side.
A court must also look at whether or not a person is available to work, not to include times where looking for work was impossible. You can’t expect someone to be out pounding the pavement and handing in resumes if that same person was in the pokey or hospitalized.
The last two factors for this article concern the “local geographical area” – what are the job opportunities, going wages, and number of hours available around town? For some areas that have been hit hard with job loss, it may be difficult to find a full-time job in that particular region, and not everyone can just pack up and relocate to a more profitable community. Salaries are higher in areas with a higher cost of living, so that needs to be factored in as well.
Stay tuned for the factors finale in the next article.
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Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. Her blog site is: http://legalbling.blogspot.com. She can be reached by e-mailing her at matyjasz@hotmail.com.
