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.