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Cathy Meyer

Is Your Ex Willfully “Underemployed?”

By September 7, 2012

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My ex was a career Air Force Officer. His child support was based on his pay as an officer and when he retired he petitioned the court to modify and lower his child support payments. His income had dropped by 2/3 and he had decided not to pursue another career after his retirement. He retired at the ripe old age of 47.

He held two master's degrees and his experience with the Air Force would have made it easy to transition into a new career. He had in fact started his own construction company but had not noted that information in his petition to modify child support.

The judge denied his request to modify child support because he was choosing to be underemployed. Plus, I showed up with evidence in the form of photos and online advertisement that he was earning more than his Air Force retirement due to his construction business.

It isn't unusual for someone to attempt to do what my ex tried. Some quit high salary jobs for lower paying jobs, some retire and refuse to work another job, some feign illness and go on disability. If a man or woman has been ordered to pay child support or spousal support what better way to lower or not have to pay at all than not earning enough money to pay?

The beauty of the Family Court system is, these people will have to prove to the court their reason for choosing to be underemployed. And, you will have the opportunity to prove that the person has the ability but is refusing to work a higher salaried position.

If you are on the receiving end of someone who is willfully underemployed you can successfully prove this in court in three ways.

  • Prove that a downward modification of support would detrimentally affect your financial needs.
  • Prove through evidence that the petitioner is living a lifestyle that would be impossible to support based on the income they are claiming.
  • Prove through evidence that the petitioner has the ability and means to work a higher salaried position and is choosing not to.
September 23, 2012 at 8:37 pm
(1) Jill says:

My ex Is 40 yo. He just retired in May from 20 years in the Navy as a SEAL. He has been paying $882 per month for the past 8 years. He filed in May to reduce his child support claiming he is retired and is not working. He moved to another state taking his gf with him. She quite a high paying sales job to go. I have learned that they have partenered in his brothers business but I am having a hard time proving it. I believe the gf is putting a lot of things in her name to help support his case in court but also do not know how to prove this. Your article gives me some comfort that the Judge will see right through the lies and manipulation. I have requested bank statements etc but he hired a high price attorney and filed a motion to quash. I am thinking since he doesn’t want to document produce he must have not covers his tracks well. Does anyone have any suggestions that might help me prove that he is working and putting pay in gf hands to hide income? Thanks!

March 25, 2013 at 12:18 am
(2) RRM123 says:

I think the burden of proof is upon him to show an inability to pay or continue earning income that would provide the support indicated. The fact that he is only 40 and healthy weighs heavily in the direction of being willfully under-employed.

Find out where he is living, the value of rent or property, and anything you can to document the cost of his current life style and whether it is consistent with someone making more money than they claim.

Contest the motions to quash by responding with multiple justifications for why the documentation and/or financial records you seek are relevant to the issue of modification. Don’t rely on just one reason. If he has no record of current employment than his bank account should not be showing any regular deposits. I wonder if you can subpoena tax records to see what income is actually being reported?

April 2, 2014 at 12:12 pm
(3) marge says:

my former spouse retired at 40, next day filed papers to sue me for child support claiming his new (retired) income is less than mine now. However has had no problem spending money of extravagant things in past few months approaching this retirement. how is this possible???

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