Stay at home parents and homemakers often ask whether they will have to get a job after they divorce. While the short answer is technically “no,” it is not that simple. The court will not order you to get a job. That said, you may need to get a job depending on the support you are receiving and your expenses. Importantly, the court has the authority to impute an earning capacity to a nonworking or underemployed spouse or parent. With regard to underemployment, Pennsylvania Rule 1910.16-2 states,
If a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity.
The court determines what you could earn in a full-time position suited to your experience and training. For example, if you earn $10/hour part time, the court could impute to you a 40-hour work week instead. Or, if you have a degree or certification, the court could impute an income commensurate with your training.
The court factors in age, education, training, health, work experience, earnings history and child care responsibilities in determining earning capacity. In some instances, we retain vocational efforts when earning capacity is highly disputed and impactful on the case. Even if you have no skills or work experience, a court could impute a minimum wage earning capacity to you.
How does your earning capacity impact what you receive? In Pennsylvania, the court factors in the income (or earning capacity) from each parent. Interim support, which a spouse receives during the separation period, otherwise known as spousal support or alimony pendente lite, is based on a formula that considers the differential between the parties’ respective incomes (or earning capacities).
The determination of alimony, which is a post-divorce remedy, includes the consideration of party’s income or earning capacity, reasonable needs and equitable distribution award of assets.
The court may project that the dependent spouse’s earning capacity will increase over time due to further training or retraining and experience. Take, for example, a stay at home parent has been out of the workforce for 10 years but previously held a license to work as a dental hygienist. The court may consider the time it would take to become re-licensed. The court could find that the spouse is qualified to work as a dental assistant in the interim. When the case reaches equitable distribution, the spouse will then have an increased capacity to earn. This is regardless of whether they actually made the effort to obtain a new license. As this spouse increases their earning capacity, they decrease their need for support.
All said, when the court imputes an income to you, you will receive less support. The assumption is that your support payments supplement your earnings whether those earnings are actual or imputed.
The news is not all bad.
If your spouse is a very high earner and your earning capacity is low, your capacity may have little impact on your support award. Work related child care is paid pro rata by income. Therefore, if you have very young children, the cost of child care may be more expensive than what you could earn.
While the court cannot order you to get a job, it is certainly easier to pay the mortgage with real income. You cannot pay bills with an income attributed to you that you do not actually receive.
Every situation is different. It is important to have counsel review your situation and advise. Here is how to get started.