Every child in Delaware has the legal right to be financially supported by his or her parents. This duty applies whether the parents are married or separated. A parent’s income is a key factor in deciding how much support is owed. Unfortunately, some parents try to lower the amount of child support owed, or avoid paying altogether, by reducing their income. They may do this by cutting back work hours or refusing to work altogether.
Parents who voluntarily reduce their income may think they are avoiding the system, or that they will punish the other parent by paying less. However, it is their child who suffers by not being financially supported.
This article will explore the situations when a parent acts irresponsibly regarding work and child support, and when the court will attribute or “impute” income to that parent. If you still have questions after reading this article, you should contact an experienced family law attorney for help.
In Delaware, a parent must financially support his or her child until the child graduates from high school or reaches age 19, whichever happens first.
Delaware calculates child support using the “Melson Formula.” Under this very complex formula, the amount of child support to be paid is calculated after the court figures the monthly net income of each parent, the primary support needs of the children, and a standard of living adjustment. For more detailed information on child support, see Child Support in Delaware.
Imputed income is income attributed to a parent when he or she is able to work, but is unemployed or underemployed due to his or her own fault or voluntary decision. Income may also be attributed when a parent fails to appear in child support court, or appears in court, but is unprepared or unwilling to provide sufficient income information.
Court's don't typically impute income to parents that are involuntarily unemployed. Involuntary unemployment happens when a parent loses a job for a legitimate reason and is unable to find another job despite reasonable efforts. When this happens, the unemployed parent will be required to show the court that the job loss was actually involuntary. The parent must also be prepared to show evidence of diligent efforts to find another job and inability to find a job.
Other examples of involuntary unemployment include when:
Voluntary unemployment and underemployment happen when a parent loses income either by choice or due to his or her own misconduct. This most frequently happens when a parent purposely cuts back on work hours, quits a job, or loses a job due to misconduct. Other examples include when:
The court will not impute income to a voluntarily underemployed or unemployed parent if the parent can show evidence that a “sufficient period of time” has elapsed during which he or she has been actively seeking employment. When a parent seeks to avoid imputed income under this exception, he or she has the burden to show the court that:
The court will also take into consideration the reasons why the parent is underemployed or unemployed. For example, a parent who lost a job due to misconduct, but then made diligent efforts to find another job, may still have income imputed due to the actions that caused the initial job loss. The facts of each case will guide the court’s final decision.
To determine the amount of income to impute to a parent, the court will look at that parent’s earning history, employment qualifications, and the current job market. The court may also look to Department of Labor wage surveys to estimate earning capacity.
When no documents, earning history or other employment evidence exists, the parent may be attributed at least as much income as the other parent. At the very least, every parent under the Delaware law is presumed to be able to earn the greater of half the state median wage for a 40-hour work week, or the Federal or State minimum wage (whichever minimum wage is greater at the time).
It is important to understand that the unique facts of each case and the evidence presented will be key to the amount awarded.
Delaware Family Court Rules of Civil Procedure, Rule 501 - Income Attribution