Two tests have developed to determine whether income should be imputed to an unemployed or underemployed parent for purposes of determining his or her child support obligation - the voluntary/involuntary test and the good-faith/bad-faith test. By far the more inflexible of the two is the voluntary/involuntary test. If a court determines that a parent is voluntarily unemployed or underemployed, then it must impute income to that parent regardless of the reason for the unemployment and regardless of whether the parent's actions were designed to reduce the income available to pay child support. The sometimes harsh effect of the voluntary/involuntary test is demonstrated by a recent Alabama case, Van Houten v. Van Houten, 2004 WL 406235 (Ala. Civ. App. 2004).
In Van Houten, the parties divorced after a 20-year marriage. As a collateral effect of the divorce, the father was demoted from his position as a pastor at a Presbyterian Church where he earned over $90,000 per year in salary and benefits. Despite his demotion, the father's salary and benefits remained unchanged. Two years after his divorce, the father had met someone new and was planning to get married. The father's immediate supervisor at the church requested that the father delay his second marriage several months so that the church council could discuss his planned remarriage. The date for the father's remarriage had not yet been set at the time of the requested delay. However, the father and his second wife proceeded to marry before the council was supposed to meet. The father initially kept his second marriage a secret, but when he informed the church of his remarriage he was terminated from his employment.
As a result of his termination and the ensuing loss of income, the father petitioned for a downward modification in his child support obligation. Applying the voluntary/involuntary test, the Court of Civil Appeals of Alabama held that the father's termination was a direct result of his voluntary decision to remarry prior to the church's possible approval. The court noted that the father deliberately decided not to abide by the request to delay his marriage and that he knew "that the timing of the marriage might cost him his job and his ability to support his three children." Id. at *6. The court concluded that the father was voluntarily underemployed despite not knowing whether the church would have still asked the father to resign if he had waited for the requested period. The only evidence presented concerning whether the church would have approved of the father's marriage came from his testimony that it was "possible" that the church would approve of his remarriage. Id. at *3. Although the court acknowledged the speculative nature of its decision and noted that a different result may have been reached if the father had delayed his marriage and was still terminated by the church, the court did not expressly hold that the father's underemployment would have been involuntary if he had postponed the marriage. The court's decision holds out the possibility that the father's underemployment would still be considered voluntary no matter when it was made, thus leaving the father to choose between getting married and retaining his job.
The speculative nature of the majority opinion, as well as its impact on the father's right to marry, was criticized by the dissent in Van Houten. The dissent stressed the fact that it was still unknown whether the father would have kept his position by postponing his marriage. The dissent also rejected the majority's conclusion that the father was voluntarily underemployed because of his termination upon remarriage, questioning whether the law would actually require the father to postpone his marriage when he was legally entitled to remarry.
David Cotter is a Senior Attorney of the National Legal Research Group, the nation's oldest and largest research firm for attorneys.
