Imputing Income for Child Support in North Dakota

A look at the process of imputing income in North Dakota and how it impacts child support.

Nothing brings a couple closer together than children. Sharing hopes, dreams, and fears about little ones, making plans and sharing experiences—it all has the potential to cement loving relationships between two parents. It's ironic, then, that when two parents end their relationship, nothing tears them apart faster than the question, "Who's going to pay for the kids?"

When a relationship ends in divorce or a break-up, both parents have a legal obligation to financially support their children, but typically, the non-custodial parent (known as "the paying parent") usually has to pay child support to the custodial parent ("the receiving parent").

Unfortunately, paying parents sometimes try to "get even" with the other parent by avoiding their child support responsibilities. But this only hurts the children, because child support belongs to the child, not the adults. Child support money can only be used to pay for a child's needs.

When paying parents try to skip out on paying child support, the courts sometimes respond by "imputing" income to them. This means that the court issues a child support order that assumes the paying parent is working and earning money like always.

This article will explain when and how courts impute income for child support purposes in North Dakota. If you still have questions after reading this article, you should contact an experienced family law attorney for help.

What Do I Need to Know About a North Dakota Child Support Order?

In North Dakota, courts use guidelines to determine how much child support must be paid. Under the guidelines, the paying parent has to pay a certain percentage of gross monthly income to the receiving parent, depending on the amount of available income, the time each parent spends with the children, and the number of children the couple has together. The information can be typed into a child support calculator, which assesses each parent's responsibility.

Gross monthly income is all income from every source. It includes obvious items like salary, wages, tips, bonuses, royalties, dividends, and commissions. It also includes some things that might surprise you, like unemployment payments, worker's compensation, and veterans' benefits. When it comes to gross monthly income, almost everything counts except for public assistance.

The guidelines are a presumption, meaning that the court will apply them unless a parent asks for a deviation and "rebuts" (overcomes) the guidelines. A parent can rebut the guidelines by proving that a deviation is in the child's best interests and that one of the following circumstances exists:

  • the receiving parent is seeking additional support for more than six children
  • the paying parent, with monthly net income (gross income minus allowable deductions) of more than $12,500, has an increased ability to pay child support
  • the parents agreed to increased educational costs for the child
  • the child has a disabling condition or chronic illness
  • the child is age 12 or older
  • the receiving parent needs to pay for child care related to employment or education
  • the paying parent's net income has fallen due to depreciation (cost of living) but the court has imputed income to the parent, so the parent still has an increased ability to pay child support
  • the paying parent can get additional income from assets
  • the paying parent can get more money by engaging in an asset transaction (for example, by selling property)
  • the paying parent can't pay as much child support due to travel expenses paid as part of visitation with the child and also due to the expenses of the parents
  • the paying parent can't pay as much child support due to a situation over which the parent has little or not control, like an emergency, which forces the parent to spend extra money
  • the paying parent can't pay as much child support because of increased health care needs, or
  • the child's need is reduced because the net income of the receiving parent is at least three times higher than the net income of the paying parent.

For more information about what's included in adjusted gross income and how child support is calculated in North Dakota, please see Child Support Laws in North Dakota (Nolo).

Upon a parent's request, child support orders can be changed after one years. You can ask for a change before that if there has been an unforeseen "material change in circumstances" that affects the receiving parent's level of need or the paying parent's ability to pay.

What if the Paying Parent Claims to Have no Income or Stops Working?

Sometimes paying parents don't make child support payments because they don't work, or they don't work enough. For example:

  • The paying parent might voluntarily become unemployed. For example, a paying parent could outright quit a job.
  • The paying parent voluntarily became "underemployed." North Dakota defines underemployment as a paying parent having gross income that is significantly less than the statewide average for people with a similar work history and job qualifications. Voluntary underemployment happens when the parent asked for a schedule reduction or accepted a position with less responsibility and less pay.

When these situations exist, North Dakota judges will impute income to the paying parent (meaning, the judge will assign the amount that the court thinks the paying parent could have earned) when they calculate guidelines child support. Income is imputed when a parent makes a voluntary choice that results in the reduction of income.

But what if a paying parent is involuntarily unemployed or involuntarily underemployed? For example, what if a paying parent's employer issues company-wide layoffs or reduces the paying parent's hourly wages or schedule? In these cases, the court probably won't impute income because the parent hasn't lost income due to a willful and voluntary choice.

What is Imputed Income?

When the court totals up the amount of income that a paying parent could and should have been earning and includes it in a child support order, the court is "imputing" income to the paying parent. Imputing income is the judge's way of saying that the paying parent is capable of paying more child support and should have had earned wages or a salary in the imputed amount. Imputed income is assigned to a parent who doesn't actually have the money, but who the court believes should be responsible anyway.

North Dakota has a presumption (a legal assumption) that a paying parent is underemployed if one of two statements about earning capacity is true:

  • the parent's gross income is less than six-tenths of the statewide average for people with a similar work history and job qualifications, or
  • the parent's monthly earnings are less than 167 times the federal hourly minimum wage.

If the paying parent can't provide reliable information about gross income (for example, pay stubs or tax returns), the court also has the power to impute income.

This means that if the paying parent goes to court, the paying parent will have to present evidence to show that the parent isn't trying to avoid the obligation and that the reason the parent isn't working harder is involuntary and outside the parent's control.

Resources

Legal Services of North Dakota (free or reduced-cost legal aid) and the North Dakota Department of Human Services, Child Support Division may provide additional legal information or resources regarding child support and imputation of income.

For the text of the laws governing these issues, please see the following:

N.D. Cent. Code § 14-09-09.7

N.D. Adm. Code § 75-02-04

N.D. Adm. Code § 75-02-04.1

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