When breakups and
divorces occur, it can be one of the most difficult things a person and/or couple
can go through. The separation can be simplified in a sense, if there
are no children involved. When children are involved, the separation can
be a bit less amicable. In this time parents can choose to spite each
other in terms of
child support because when the splitting couple has a child or children together, the
non-custodial parent will still be involved in their life.
North Carolina Law puts most of the emphasis on the non-custodial parent
because the child or children primarily lives with the custodial parent.
There are a number of ways a parent can attempt to spite the other person
by withholding child support. These ways include: deliberate loss of employment;
falsifying time sheets to show less hours worked; and not working or seeking
a job at all. The best thing to do for parents in this situation is to
have an agreement in place as to what child support will be paid for the
amount of time needed. If this is not done, a court will have to determine
how much child support will be paid from the non-custodial parent to the
custodial (live in) parent. According to North Carolina Family Law §10.9,
in addition to gross income, which is generally used to calculate child
support, the court may use earning capacity or potential income in cases
where a parent is voluntarily employed or underemployed.
The courts will elect to "impute income" if and only if it can
be determined that the non-custodial parent deliberately attempted to
falsify his income or purposely neglected the obligation to provide child
support. The key is bad faith. When a parent acts fraudulently in an effort
to suppress income the court will react accordingly. In the case of
State v. Williams, 179 N.C. App. 838, the court ruled that the father's imputed income was in error because
they calculated it from 18 months prior to the child support hearing,
and there was no finding that the father deliberately depressed his income.
The award cannot be based on prior income and there must be a finding
of bad faith on the parent's actions in regards to pay the support.
There is always the chance of error when it is left to the courts to impute
income. For instance, if the parent is self-employed and reports a loss
of income, that income has to be factored into the computation of gross
income. It is important to know that imputing income is not the same as
totaling income. In the case of
Burnett v. Wheeler, 128 N.C. App. 174, the case was appealed based on the defendant's belief that the court
improperly imputed income to his detriment. The court concluded that they
totaled his income instead of imputing it after calculating all sources
for gross income. There had been no finding of bad faith efforts to state
proper income in terms of child support. The court further concluded that
there was not any calculation for capacity to earn income thus finding
that the judgment was not a result of imputed income.
If it can be proven that a parent knowingly disregarded the obligation
to provide payment or their deliberate actions resulted in a loss of income
in terms of child support the court could move to impute income. In an
Metz v. Metz, 711 S.E.2d 737, the defendant lost employment as a result of his voluntary actions and
unreasonable behavior with his children. The court ruled that since these
were the defendant's own actions and that the defendant was capable
of contributing support for the couple's minor children, that it was
equitable to impute income. The defendant's imputed income was a result
of his salary while working his full time job because his own actions
were the result of the loss of employment and destruction of their family.
In the event of divorce or separation, the best way to avoid having the
courts to impute income is to stay employed in the same capacity throughout
the child support hearing, make good faith efforts to pay the support
and to have an agreement in place with the spouse. If there is an agreement
reached between the two parties, the court will not have to impute income
but simply enforce it. Any bad faith attempt by a parent to modify employment,
as well as any missed payment, will result in the courts imputing income.