Underemployed In Minnesota (For Child Support Purposes)

Underemployed for child support purposes? Imputed income in calculating Minnesota child support obligations

Child support litigation may be the one time you can tell your ex that he is

Underemployed

underperforming in terms of employment and have the legal support to back it up.  When a court makes a decision on how much child support is to be paid by a parent, the amount of child support ordered will depend on the parent’s income.  But what happens if your ex is capable of working hard but has taken an easier, less time-consuming job which pays less money?  Should your ex be rewarded by getting to pay less child support?

The answer is no, under Minnesota law.  In making a child support order, courts must (it’s mandatory) consider a parent’s potential income if the court finds that the parent is voluntarily unemployed, underemployed, or employed on a less than full-time basis.  Potential income is also called imputed income, and it means the money the parent would be earning if they were working to their employment potential.  If your ex changed jobs and moved to a more poorly-paid position, purposely got himself fired, or quit working altogether, this could lead the court to find that your ex is voluntarily unemployed or underemployed.

Of course, the key word here is voluntarily.  Courts will presume that every parent is capable of working full-time in gainful employment.  However, that doesn’t mean that a parent can’t have legitimate reasons for either being out of work or earning less money than they used to.  A recession-induced layoff or a medical illness would support an argument that the parent’s underemployment isn’t voluntary.  If it’s your ex who is accusing you of being voluntarily unemployed or underemployed, you should keep evidence of your efforts to find a new job, such as copies of job applications and records of job interviews you attended.  You can also avoid a finding that you are voluntarily unemployed by showing that your current employment situation is temporary and will ultimately lead to increased income in the future (e.g. you’ve quit your job to go back to school).

A “bona fide career change” that results in decreased income is also not considered voluntary underemployment.  To establish that you’ve had such a career change, you might want to gather evidence of your desire to change careers (old emails, any correspondence you had with people in your new field to talk about a potential career change) as well as prepare a detailed explanation of why the career change is beneficial in ways other than monetary compensation.

If the court does find that a parent is voluntarily unemployed or underemployed, potential income will be calculated in one of three ways, as the court finds appropriate:

  • The court will calculate the parent’s probable earnings based on employment potential, recent work history, and occupational qualifications.  It will take into account prevailing job opportunities and earnings levels in the community.
  • If a parent is receiving unemployment compensation or workers’ compensation, that parent’s income may be calculated using the actual amount of the unemployment compensation or workers’ compensation benefit received.
  • The court will use the amount of income a parent could earn working full-time at 150% of the current federal or state minimum wage, whichever is higher.

There you go, a look at being underemployed for child support purposes in Minnesota.  As you can tell, it can be a little tricky to prove it but it’s not impossible.

Jason Kohlmeyer
Rosengren, Kohlmeyer & Hagen Law Office Chtd.
Mankato, Minnesota
507-625-5000 |rokolaw.com 

Information obtained in mankatofamilylaw.com may contain knowledgable content about Minnesota Family Law that may be considered beneficial to some; however, in no way should this website or its contents be considered legal advice. Mr. Kohlmeyer is a Minnesota licensed Attorney and cannot provide legal services or guidance to those outside of Minnesota. If you wish to retain Mr. Kohlmeyer as your Attorney in your Family Law matter, contact 507-625-5000.

Jason Kohlmeyer

With over 15 years experience in high conflict family law cases, having received numerous awards, and a frequent lecturer through both Minnesota and the United States on family law issues, Jason has decided to help people through a blog, answering some of the most common questions that people have during divorce and family law. cases. http://rokolaw.com/southern-minnesota-lawyers/jason-kohlmeyer/

Remember this isn’t legal advice. Just blog and attempts to answer general questions, for legal advice you need to hire a lawyer. If you’re in Minnesota our firm would be happy to see if we can help you.

5 comments

  1. Attorney Kohlmeyer,

    My ex-wife had a 3 year period within a 10 year marriage where she did not have full employment, to raise our kids. Prior to having our children, she made at least $40-50k in the mortgage industry. We’ve been divorced for a year now. I lost a $20/k per month job and got her attorney to agree to have my child support lowered, but not by the courts. We just take a look at my pay checks and average them out and come to a number.

    I’m in sales and starting to build my commissions on top of my base. Gross average is $4600/mo. Her hourly pay is $13. So, $2,253.mo. I’ve been using $2666 from her attorney’s calcs from the decree. Not sure how they got to that number, though.

    Now i had a chance to see her actual pay. It’s $13/hour, but she’s only averaging 55 hours per pay stub. If she’s only at $1500/month and not the $2666 that her attorney gave me, then I could be paying a lot more. I can barely afford it now and still live. Plus I pay her $700/mo maintenance. I have a Karon waiver and can’t be changed.

    What are the steps needed to prove that she is underemployed? How often will a judge find me in favor?

    Thanks

    Derik

    • Well, your first HUGE mistake is not having the child support order changed, you can’t just make side agreements and enforce them, this means she can at any time demand the amount that is contained in the decree and you will owe thousands in arrears. Unless and I really hope you did this, you created a new order and had the Judge sign it, otherwise this will be problem.

      If she has been and continues to make $13/hour that is probably the number the court will use; however the new law that came about in 2016 says that if she is underemployed the amount will default to minimum wage x 30 hours per week.

      Good luck.

  2. My ex husband recently quit a job (Level II Superintendent of WInd Energy) he averaged $11,000/month the past year. They even offered him $160k salary to stay. He left to work for $25/hr and do side jobs for cash. He quit his job and filed to modify for child support immediately.
    He has not specifically stated he quit to lower his child support.
    He is making pretty good money from his side jobs that are cash. I know a lot of people where he lives so they have informed me of some of the jobs he is doing.
    His girlfriend and him have one child together that is 1 and another on the way. She recently had some medical problems and told everyone she was put on bed rest. She still frequents the bars, fishing trips, drives all over and does not appear to be on bed rest. So from what I can tell he cannot use the medical excuse for switching jobs voluntarily…would I be right in presuming that?
    We have a 17 yr old that he sees maybe for 10 hours a year and a 7 year old that he sees when its convenient for him and he refuses to have anything to do with either of them as far as emotionally supporting them in school or other activities or in raising them. If he has our 7 yr old on a school night he will ask if she can just skip school so he doesn’t have to drive her. He lives 45 minutes from her school.
    He pays what is court ordered for the most part. (such as his percentage for activities and sports fees)
    I am receiving $1,172/month for both kids. And some for back pay as he has arrears.
    We have court on the 24th. I would like to request to the judge that child support stay the same based on the facts of his potential or probable earnings of his employment/work history and occupational qualifications.
    OR is that completely absurd?? (it would be 26-27% of his income of $25/hr & I would also request he continue to provide health insurance for the kids and leave the percentage of 68/32 the same. He is requesting 50/50)

    As it stands the judge calculated the current support using his income of $8000 since he told the judge he wasn’t working as many hours as the past 3 yrs, however, since the order was filed in July of 2013, his income was $114,833.00 for 10 months. (average of $11,483.30/month)

    Can I request that he provide his checking and savings account statements and his girlfriends since her and her 2 kids live at his home and they have kids together?
    I know that these types of cases are difficult to prove, from what I have told you, in your professional opinion what are my chances?
    I do not have a lot of extra money to pay for an attorney but I possibly could get a loan if I feel that I might have a fighting chance of winning this with an attorney? People I talk to are telling me that his earnings from his side jobs would never be looked at in child support court. But I believe that it is proof/evidence of him leaving his job to get out of paying as much in child support.

    Just looking for some advice on what direction to go and have very little time to prepare.

    Thank you for any advice!
    Bobbi

  3. Hello. I have two daughters that I have raised all alone since 2004 and I have sole custody. They are now 11 and 12yo. They’re mother lives and used to work in Waterloo IA. The girl’s and I live in Springfield MN. I believe she was fired or quit to take a lower paying job or is now on unemployment, is this considered voluntarily under employed?

    I work in sleepy eye MN. I earn &15.00/hr approx. 32/hrs with no benefits. I have been working there for about 1.5 years. I need to be available to work Monday thru Friday and never know witch day I wont be working.
    The boss says they will be bringing a sister company located in Lakeville MN. to the Sleepy eye plant in a year or so. Dose this make me under employed? When they do this they would need to hire a few new full or part timers. It is just me an the Boss at the plant now and I’m sure I would go to full time status at this point. I am counting on it.. and like this job because it close to home and pays well and the state picks up the health ins if my ex quits her job.

    The reason I had to take this job in the first place is that I was the parent that had to pay for 100% medical on the girl’s. employment is scarce around this area. Lots of $10.00/hr temp jobs but at $10.00/hr minus $500.00/month health ins and only $263.00/month child support. It was to tough to make ends meet.

    A year or so ago the county did a review and awarded me $600.00/month and she had to pick up health ins premiums.

    Question: would you think a MN. judge would consider her voluntarily unemployed and leave the support as it is?

    Question: Would a MN. judge consider me under employed at 32/hrs a week even though better pay and benefits are close at had in the near future. I can only work day shift on account of being a single parent with adolescent children? Hard to find a day job that pays above $10.00/hr near bye.

    She is know asking for a review to lower the child support. Thank you, John.

    • John,

      Thanks for the question. The short answer is that I suspect the child support magistrate would consider you as under-employed in the New Ulm/Springfield area. The reason is that I don’t hear you having a good reason for those missing 8 hours/week, I suspect the magistrate would impute full-time income to you. Sorry for the bad news.

      Is she under-employed? We need some specifics for that. what was she making in Iowa, what is she making in Minnesota? Are there other benefits she might be getting? Need a little more info.

      -Jason

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