Tennessee courts can modify child support up or down if a parent has a significant change in income. However, courts won’t allow a noncustodial parent to decrease child support if he or she is willfully unemployed or underemployed. There are a number of factors to determine whether the other parent of your child is willfully and/or voluntarily unemployed and/or underemployed.The Guidelines do not presume that a parent is willfully underemployed. TENN. COMP. R. & REGS. 1240-02-04-.04(3)(a)(2)(ii), but rather provide a road map for the court to ascertain the parent’s career choices and determine the reasonableness of those choices.
“A determination of willful and/or voluntary underemployment or unemployment is not limited to choices motivated by an intent to avoid or reduce the payment of child support.”). The court may base its determination “on any intentional choice or act that adversely affects a parent’s income.” Id.; see Anderson v. Anderson, No. 01A01-9704-CH-00186, 1998
The trial court must “ascertain the reasons for the parent’s occupational choices, and . . . assess the reasonableness of these choices in light of the parent’s obligation to support his or her child(ren) and . . . determine whether such choices benefit the children.” Id. So the “complete factual background of the obligor’s situation” is relevant. Ralston v. Ralston, No. 01A01-9804- CV-00222, 1999 WL 562719, at *5 (Tenn. Ct. App. Aug. 3, 1999). A parent earning a high income cannot avoid a higher child support obligation by voluntarily changing employment to a lesser earning position. If the court determines the parent to be willfully and/or voluntarily unemployed and/or underemployed, it can allocate additional income to be imputed to the parent for purposes of calculating child support. This is to reflect the correct the earning capacity and/or income potential of that parent. The parent receiving child support bears the burden of proving that the obligor parent is willfully or voluntarily underemployed. Demers v. Demers, 149 S.W.3d 61, 69 (Tenn. Ct. App. 2003).
The following are a number of factors the court evaluates in determining if the parent is willfully and/or voluntarily unemployed and/or unemployed:
- Past and present employment.
- Consistency in a parent’s career will be determined. A sudden career change may adversely affect the parent’s earning capacity or stability of employment.
- Education, training, and ability to work.
- Education is a direct corollary to earning capacity and income potential. A parent with an advanced degree or certification in a skilled trade will be expected to earn more.
- Extravagant lifestyle such as expensive and unnecessary purchases that appears unreasonable for income claimed.
- A parent claiming certain circumstances in life is limiting their earning potential or earning substantially less than expected will stir suspicion with purchasing habits that exceed such income or earning potential.
- Any role as a stay at home parent.
- The child support guidelines recognizes the important role of a stay at home parent and the value that brings to the life of a child. The Court will look at three important factors:
- The length of time the parent was at home with the child as a full time caretaker when the parents resided together.
- The length of time the parent has been out of the work force.
- Age of the minor children.
- The child support guidelines recognizes the important role of a stay at home parent and the value that brings to the life of a child. The Court will look at three important factors:
- Pursuing additional education or training.
- A parent who decides to go back to school to gain a degree or advanced training for a particular trade or skill will not be penalized if the choice is reasonable and in the best interest of the children long term with a higher earning capacity as the intended goal.
- Status in the armed forces.
- A determination of willful and voluntary unemployment or underemployment shall not be made when an individual enlists, is drafted, or is activated from a Reserve or National Guard unit, for full-time service in the Armed Forces of the United States. Role as a caretaker for another family member that prevents full time employment.
- Criminal activity.
- Criminal activity and/or incarceration shall not be an affirmative basis for a reduction in child support.
It is important to retain an attorney to maximize the child support obligation you shall receive or are presently receiving. One area of particular complexity is with a parent who is self employed and earnings can substantially alter based on conditions of the market and expenses. The reasonableness of how much a parent is claiming to work and their expenses will be a question of fact for the court. A self employed parent may not be aggressively soliciting business or may be inflating their expenses.
The determination of whether a parent is willfully and/or voluntarily under or unemployed presents a question of fact. See Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct. App. 2002). The court also uses a best interest analysis in its determination. If the parent seeks additional training that will increase earning potential, then that is clearly in the best interest of the child. Courts have held it was in the child’s best interest to spend more time with the mother in a case involving a mother taking a lesser paying job that cut her commute time in half.
The Tennessee Child Support Guidelines can be found at
https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20080815.pdf
https://www.tncourts.gov/sites/default/files/goodrich.elizabeth.opn_.pdf
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