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Can a Person Refuse to Work in Order to Avoid Paying Child or Spousal Support in a California Divorce?

Money and finances is one of the primary reasons people divorce, and the refusal of one spouse to earn a wage commensurate with his or her skills is indeed a specific factor in many a marital breakdown. It should come as no surprise that this disagreement about one’s alleged refusal to work – or, in other words, their “earning capacity” – continues to be a factor in divorce and even after a divorce is finalized.

Specifically, a party from whom spousal or child support is being requested may argue that they do not have the income to afford the full support requested, while the other party argues that the person could be earning that income if they made the effort. In short, refusal to work when a party can work is not by itself a valid reason for a low support number in California (note that this is true for both the party requesting support and the party to be providing support).

Earning Capacity is a Factor in California Spousal and Child Support Determinations

To be sure, the monthly incomes of both parties will play a critical role in determining both spousal and child support payments in a California divorce. And while it is important, it is not the only factor.

In addition to other factors such as the total assets held by each party, and the financial needs of both parties (e.g. medical care), California courts will look at the income potential of both parties, which includes their “marketable skills” and their “earning capacity.” This can be based on their current earning capacity or their capacity to obtain training or vocational counseling to earn a higher income.

A Vocational Training Examination Can Be Ordered to Determine Ability to Work

This does not mean, however, that one party can simply come into court and argue that he or she has no increased earning capacity, either now or in the future, and have that be the end of the story. Both parties can present evidence of degrees, work and salary history, and other relevant data to show this.

In addition, California law allows for one party to demand (upon a showing of good cause) that the other party submit to an examination by a vocational training counselor regarding their earning capacity. The examination “shall include an assessment of the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities.”

The court may incorporate the results of this examination – which again can be imposed upon a person requesting support or of whom support is being requested – and, in some cases, the party undergoing the examination will be required to pay the costs of the examination.

Get Answers to Your California Family Law Questions

At Kearney | Baker in Pasadena, we represent spouses through all aspects of the dissolution/divorce process. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.

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