Imputing Income for Child Support in California

When parents of minor children are separated or divorced, one of them will almost always have to pay child support. Under California's child support guidelines, the amount of that support (as well as which parent will pay) depends primarily on both parents' incomes and how much time their children spend with each of them.

But what happens if parents try to game the system by intentionally reducing their earnings or simply refusing to say how much they make? California law gives judges an important tool for dealing with these tricks. It's commonly known as "imputing" income. Read on to learn how it works.

What Is Imputed Income?

When a judge imputes income to a parent, child support will be calculated based on what the parent could be earning ("earning capacity") rather than actual income. California law doesn't define earning capacity, but the state's courts have concluded that it includes both the ability and the opportunity to work and earn a certain level of income.

We'll go into more detail below on the specific circumstances judges look at when they're deciding whether a parent has both the ability and opportunity to earn—and if so, how much.

When Will California Judges Impute Income to Parents?

Under California law, judges must consider a parent's earning capacity when they're making child support decisions if that parent's actual gross income isn't known—for instance, if a parent has refused to provide financial information when the other parent requests child support or a modification of an existing support order.

When a parent's income is known, the law allows a judge to consider that parent's earning capacity rather than actual income, "consistent with the best interests of the children." For example, a judge may impute income when a parent is voluntarily unemployed or underemployed.

(Cal. Fam. Code § 4058(b)(1) (2024).)

Does the Reason for a Parent's Voluntary Unemployment or Underemployment Matter?

Historically, judges could only impute income when parents were deliberately shirking their child support obligation by refusing to look for or accept gainful employment. Even though that kind of deliberate avoidance would still play a significant role in a judge's decision, the current law allows the use of earning capacity in all child support cases when parents could be earning more than they are, as long as that would serve the children's best interests—considering the kids' welfare and developmental needs, as well as the time the parent spends with them.

(Cal. Fam. Code § 4058(b)(1)(B) (2024); In re Marriage of Smith, 90 Cal.App.4th 74 (Cal. Ct. App. 2001).)

Can Judges Impute Income to Prisoners?

Under current California law, judges may not treat a parent's incarceration or involuntary institutionalization as voluntary unemployment when they're deciding whether to impute income. (Cal. Fam. Code § 4058(b)(3) (2024).)

How Do Judges Decide on a Parent's Earning Capacity?

When judges are determining a parent's earning capacity for purposes of calculating or modifying child support in California, they must consider all of the relevant circumstances affecting the parent's ability to earn, including any available evidence of the parent's:

• history of employment, earnings, and looking for work
• assets and residence
• job skills
• education and literacy
• age and health
• criminal record, and
• other employment barriers.

Judges will also consider other factors that affect the parent's earning opportunities, including:

• the local job market
• prevailing earning levels in the local community, and
• whether there are local employers who would be willing to hire the parent.

The "employers willing to hire" factor won't be relevant for parents who have been or can be self-employed (such as some professionals or tradespeople). In those situations, judges should decide whether, with reasonable effort, parents could use their skills, education, and training to produce income. (Cal. Fam. Code § 4058(b)(2) (2024); In re Marriage of Cohn, 65 Cal.App.4th 923 (Cal. Ct. App. 1998).)

Do You Need a Lawyer to Claim or Object to Imputing Income?

Unfortunately, you'll probably need a lawyer's help if you want a judge to use your co-parent's earning potential rather than actual income to establish or modify child support. The same is true if you're the one being accused of voluntarily reducing your income.

Unless the law requires imputing income (when actual income isn't known), judges can decide whether it's appropriate to consider earning capacity—and if so, how much a parent could be earning—based on how they view the overall circumstances. So the outcome of your case will largely depend on the strength of the evidence you can present.

An experienced family law attorney can evaluate your case and help you gather the right kind of evidence to convince a judge of your argument for or against imputing income. If an expert's opinion would help—such as a vocational expert who can study and report on the individual's earnings potential—your lawyer should know one or more good specialists to work on your case.

And if you're concerned about the cost of hiring a lawyer, you might consider how much the judge's decision could affect the amount of child support you'll be paying or receiving for years to come.