When New Jersey family courts determine child support obligations, they will consider the state’s Child Support Guidelines, which factor in all sources of each parent’s income. This includes not only earned wages but income capacity. A parent who chooses to be unemployed or underemployed (earning less than what they are capable of earning) can be ordered to pay an amount based on their income capacity.

For example, if a person is only working part-time when they could be employed full-time, the court can decide to base their child support obligation on what their earnings for full-time work would be. The goal is to deter parents taking on less work than they are capable of simply to reduce their child support payments.

However, figuring out earning capability or whether one is voluntarily underemployed isn’t always a simple matter – particularly right now in the midst of the COVID-19 pandemic, where the job market is uncertain and unstable. Having a skilled New Jersey child support attorney on your side can be invaluable.

Ferrer v. Colon

Recently, the Superior Court of New Jersey was asked to weigh whether the availability of overtime hours should be factored into a parent’s earning capacity.

In the case of Ferrer v. Colon, the family court looked at whether a mother should be ordered to pay child support based on the overtime she could have earned, even though she turned it down.

According to court records, those involved were unmarried police officers with one child in common. Plaintiff sought an increase in child support. She submitted as a significant change in circumstance the fact that the father’s older child from a previous relationship had become emancipated (and thus he could no longer claim an “other dependent deduction”), as well as the fact that his income had increased.

Both sides agreed that per the state’s child support guidelines, the father’s income had increased due to his no longer being responsible to pay support for his older child. What they disagreed on was whether the mother’s income increased. Both worked as salaried employees but had the option of earning additional income through overtime hours. The mother did pick up some of those hours, but not as many as she technically could have.

Nothing in the previous child support order stipulated that the mother was obligated to work a specific number of overtime hours, though it would be within the court’s discretion to determine whether those ours should be factored in.

If the court found the mother was voluntarily underemployed, then the overtime hours she could have pursued but turned down would count against her (be “imputed” to her income) for the purposes of calculating child support.

As it turned out, the court rejected that argument. Instead, it would factor only the mother’s salary plus the overtime she actually worked. The mother was fully employed, the court ruled, and she wasn’t obliged to work additional overtime. However, it should be noted that the overtime income she did earn wasn’t shielded from her child support calculation just because it was higher than her base salary.

Contact a New Jersey Child Support Attorney

Where there is a significant change in circumstances triggering a child support modification, you should always work with an experienced New Jersey child support attorney. We recognize that the courts are responsible for considering these requests based on the totality of the circumstances, and we are dedicated to gathering and presenting all relevant evidence to advocate for a favorable outcome in your child’s best interests.

Contact us at (732) 810-0034 or email us through our website.