The matter of imputing income to a parent in a divorce case is one best described by the word discretion. The California family law courts have a wide discretion to decide cases of income imputing. The only thing that needs to be taken care of is the decision should bear resemblance to the actual facts and evidence of the case suggests.
Imputation of income in an Orange County divorce case occurs when one of the parents alleges that the other spouse can work but refuses to earn an income. The concept of imputation has been causing uncertainty for Orange County divorce lawyers for some time now. There are multiple decisions on similar facts that conflict with one another.
Courts Can Consider Earning Capacity Instead of Income
Simply put there have been cases where courts have assigned an imaginary income to the parent when deciding child support. This income will be based on their abilities, capacity and opportunity to earn income. This rule though can only be applied by the judges until and unless it is not conflicting with the best interest of the child.
There is no need for the court to hold the lack of work or refusal to work against the parent in bad faith. Family law courts will simply look at the ability and opportunity of the spouse to earn income and then impute income if they see fit.
Imputed Income is Not Restricted to Child Support Cases
Imputing an income is not a primarily child custody concept. Orange County family law courts can even look at the assets that are producing income and create a reasonable rate of return of it. If for example a particular investment is made such as in stock portfolio etc. that have a fixed rate of return the court will not dispute or second guess that value, speculating that it could have been or should have been higher.
Can The Court Impute An Income and Add It to What the Parent Already Earns?
The answer to the question is not as far as formal proceedings are concerned. In theory, imputation of an income is done in a divorce case instead of the actual income and not in addition to. When you add an imputed amount on top of what the parent actually earns, it would disturb the child support guidelines and result in one of the spouse getting a significant windfall. On the other hand, income such as return on investments can be added to the existing amount of income, because it is not related to the parent making an effort to be employed.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.