Question: My daughter and her husband are starting to go through a divorce. They both work, but he is something of a workaholic. His intense work schedule has put a real strain on the marriage. They started their divorce discussion by talking about what kind of parenting schedule they should have for the kids. They agreed that my daughter would look after the children and be the primary parent.
When they looked at how much he would owe in child and spousal support, that hit a nerve for him. He has threatened her by saying that if she seeks child and spousal support, he will just quit his job, stay home with the kids, and go after her for support. Can he do that?
In addition to that, I have made a number of gifts to my daughter over time and some recently. These gifts have been both for her and for the children’s benefit. Will those gifts be counted against her when it comes time to determine how much support she should receive? Should she be worried about him quitting his job?
Answer: The simple answer to the question of whether a guy can quit his job to avoid child support is no.
No, her husband will not be able to just quit his job, stay at home, and collect support from her. Parents of minor children have a duty to support the kids. This type of statement is frequently made but seldom acted upon because the legislature has already figured out how to address it.
The court cannot force people to work, but it can apply pressure against a party who chooses not to work. Child support orders are based upon how much a party earns from employment or other sources. If a party decides to quit his or her job, the court has the power to “impute” income to a party based on “earning capacity.”
If your son-in-law goes from investment banker to part-time barista, that is fine — the court cannot force him to go back to the bank. But it can write the child support order as if he is still working there. If he chooses to embrace the couch, that will be his choice. But he will quickly start to accumulate child-support arrears, which will accrue interest at 10% per year. And if he thinks that sometime in the future he can bankrupt the debt, he will be wrong. Bankruptcy does not discharge support debts.
It is this dark future of endless debt that leads many spouses who threaten to quit work to reconsider. Self-preservation usually overcomes anyone’s level of spite.
The court, however, cannot require your son-in-law to continue “workaholic” hours and to make the same amount of money he previously made. So if he changes his schedule to start working regular hours, and if that means that he makes 50% less in income, then that amount of income will be used calculating his child support obligation.
As for your gifts to your daughter, the particular facts and circumstances behind such gifts determine how a court views them in the context of support. In most instances, a gift is not considered income. It is a charitable gesture from one person to another. However, if gifts are regularly received and regular in amount, a court can deem it income in the context of a child or spousal support request.
Rather than provide gifts to your daughter during her divorce, it might make more sense to “loan” her funds. When the court looks at her assets and debts and sees more red than black, it may be more inclined to rule in her favor. If you make loans, make sure your daughter signs promissory notes for each loan. The documentary evidence may be useful in her divorce proceedings.
The divorce process can cause serious mental and emotional agitation. When confronted with serious change — financial or familial — people can do and say all sorts of things. Your son-in-law is probably just acting out of anger and fear. Be patient, and see if he comes around.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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