We are often asked by stay at home parents and homemakers whether they will have to get a job. While the short answer is technically “no,” it’s not that simple. No court can force 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. 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 profession. 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 in a certain field, the court could attribute to you an income commensurate with your experience.
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 is paid to a spouse 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. For example, if 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 would consider the time it would take to become relicensed. The spouse may have been qualified to work as a dental assistant during the separation. By the time alimony is being calculated, their earning capacity increased. This is regardless of whether they actually made the effort to obtain a new license. As this spouse’s capacity to earn increases, their support decreases.
All said, when the court imputes an income to you, it means 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 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 to your spouse than attributing an earning capacity to you.
While the court cannot order you to get a job, it is certainly easier to pay the mortgage with real income rather than income attributed to you that you do not actually receive in your bank account.
Every situation is different so it is important to have your situation reviewed by counsel. Here is how to get started.