05/04/2023
Can a parent reduce their child support by working less?
Parents often try to avoid child support by lowering their income. The tactic is so common that lawyers and judges jokingly refer to the tactic as SIDS, an acronym for Sudden Income Deficiency Syndrome. SIDS is most common among parents who have to pay child support or alimony for the first time.
The child support guidelines of NAC 425 use a parent’s income to determine their child support obligation. This leads many parents to work less, or at least claim to work less, in an effort to reduce their child support payments. As in many areas of divorce and custody law, there is the law and then there is practice.
Under the child support guidelines, a parent’s child support obligation is based on their income from almost any source. There are a few exceptions: child support received (as in, for instance, child support payments received for the support of another child), foster care or kinship care payments, supplemental security income, state supplemental payments, and various public assistance programs (SNAP, etc.).
Under NAC 425.125, if “the court determines that an obligor is underemployed or unemployed without good cause, the court may impute income to the obligor.” In other words, if the court finds someone is underemployed or unemployed “without good cause,” the court will base child support upon the income the parent could earn instead of what the parent actually earns.
If the court “imputes income,” NAC 425 requires the court to take into consideration various factors, including the parent’s assets, residence, employment and earnings history, job skills, education attainment, literacy, age, health, criminal record or other employment barriers; and record of seeking work. The court must also consider the local job market, the availability of employers willing to hire the parent, and any other relevant factors.
People earn less than their highest possible income all the time. Teachers are a good example of people who work at a job even though they could probably earn more elsewhere. Are teachers underemployed? This is where the phrase “without good cause” comes in. There is some history here. At one time, it was presumed that a parent who was earning less than possible was doing so for the purpose of avoiding child support – which is clearly not a good reason. The parent then had to show a good reason for earning less to rebut the presumption. There have been a few revisions of the language of the rule since then. Now there is no such presumption, but a parent still must show “good cause” for earning less. The Nevada Supreme Court has not given much direction on what would constitute good cause in this circumstance. Likely the parent earning less would need to show a reason other than avoiding child support, and that is not just a pretext for the real reason of avoiding child support.
Practically speaking, courts look first to the history of the parent’s income. If a parent earned more for many years, but upon a request for child support suddenly started earning less, then the court is likely to infer that the reason for earning less is to pay less child support. But if a parent has been earning a similar income for many years, it is unlikely the other parent could say that the parent was trying to avoid child support. So if a lawyer retired to become a high school teacher ten years before there was any request for child support, then the court will likely infer that there was good cause. But if a lawyer retired to become a high school teacher the day after the other parent requested child support, the court will likely infer there is no good cause.
If a parent does not work at all, but is generally able to work, then the court will likely give that parent some time to find work. How much time depends on the current hiring conditions, the parent’s qualifications, and the type of work sought. Courts will likely expect a certain amount of effort to find work, often expressed as a certain number of job applications per week. Some judges tend to use the same standard for all cases, which can be unfortunate as an effective job search for a parent who works as a CEO of large technology companies is very different from an effective job search for a parent seeking work as a retail sales clerk.
In any case, if a judge becomes convinced that a parent is not doing enough to find employment, the judge can and likely will impute income.
People who are disabled may be excused from working and the corresponding income, especially if they are receiving disability income. Similarly, people are not required to work until they die. People over the age of 65 or so are usually allowed to retire and stop working.
So can a parent reduce their child support by working less? In short, only if there is a good reason for working less. If the judge feels that the parent is working less just to pay less child support, then the judge will set child support based on what the judge feels the parent could earn.
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