In all states, a parent’s ability to pay is a factor considered in setting child support, and in most states, it’s also a factor in setting alimony in a divorce. For child support, both Oregon and Washington consider both parents’ incomes in deciding how much the parents’ support for the children should total, then apply the percentage of income from each parent to find the starting point for a support award. (Percentages of parenting time and costs for child care may modify the figure substantially after that.) Alimony also considers the income of the parties, but, at least in Oregon and Washington, the court doesn’t just apply a formula.
This approach assumes that parents will not try to minimize their income. Fortunately, the law does provide two safeguards.
In Oregon and Washington, and probably other states, there is a minimum income that a parent is deemed capable of earning. In all support calculations, parents’ income may not be reduced below full time minimum wage, even if they aren’t earning it.
More significantly, it is possible to prove that a parent can earn more than he or she is earning. This, however, is not easy.
In Oregon, the parent challenging the claimed income has to prove that the other parent can earn more now, not what the other parent had earned in the past. That means that if the job market is bad, a reduced income may well be the best that can be done.
In Washington, each parent has to show his or her own income capacity. In addition, the parent has to show that he or she has not reduced his or her income voluntarily. To do that, the parent needs to show that he or she is not disabled, has been trying to find work, or is in school to qualify for basic work (such as finishing high school), and is not a stay-at-home parent for reasons beyond his or her control. Otherwise, the law in Washington can use at a parent’s current income, past income, extension of part time to full time, minimum wage in some cases, or the median national income for a parent’s age and gender. As a practical matter, a parent who wants to dispute the other parent’s income should take the initiative to show why the other parent should be charged more.
If you think your ex has understated income, talk to a lawyer about it. Be prepared to bring detailed proof, including documentation of past income or current potential income (especially if the ex is self-employed). The more the lawyer has to work with, the better.