Voluntary Underemployment To Avoid Child Support
CHILD SUPPORT ARIZONA – Underemployment and Multiple Children
“My ex husband has done everything to try to get out of child support. He defaulted once my son turned 18, but my son was still in high school then defaulted again and hasn’t paid any child support since my son has graduated. We still have a 14 year old son. He all the sudden has become very involved in his church and I’m afraid that he has or is going to use the excuse of doing missionary work to get out of child support. Is this possible? Also since he’s defaulted and made no attempt to pay any type of support whatsoever, my son has graduated but he has not requested to have anything modified. Is he still liable for the full amount as calculated for the two kids?”
Wow that is dedication. I have never heard of anyone that has used religion to attempt to avoid child support.
Let me start with your last question first. Your describing voluntary underemployment to avoid child support. In Arizona, if there are multiple children on a child support order the order will remain in tact until there is an order modifying the order. Your ex is required to pay the full amount of the order regardless of the fact that your oldest has graduated high school. This is a common issue that I deal with quite often. Arizona does not have automatic modification so it is vital to file for modification when your children start emancipating. The court cannot go back and retroactively change the order so the money that was garnished or paid is now gone. In your particular situation the order will continue until the 14 year old emancipates.
Now, on to the fun stuff. The Court must consider the financial resources and earning ability of each parent. So in your particular situation if your ex suddenly finds religion and wants to go on a mission trip, he is doing so voluntarily and the Court would look to see if he is underemployed. In situations where a person chooses to earn less in order to pay less in support the Court can and should look to what they have historically earned or what he/she is capable of earning to determine what that person’s income is. So if your ex is making $15.00 an hour but wants to work for free, the Court can and should impute his former wage. Generally the only time this is not the case is in instances where someone has to take on an internship in order to further his/her career. The Court will look at whether or not the choice was to increase his/her earning capability. In instances when the individual is simply a career student who is seeking to lower their income the Court can simply impute his/her regular gross income. I always tell parties that it makes more sense to earn more and pay more than try to pay less in support.
I am glad you brought up the issue of high school. In Arizona a child support order terminates the last day of the month of the 18th birthday of the youngest child included in the order unless the court finds that the youngest child will not complete high school by age 18. In that event, the presumptive termination date shall be the last day of the month of the anticipated graduation date or age 19, whichever occurs first.
So if your 14 year old turns 18 prior to graduation of high school the full order will continue until graduation of high school or his 19th birthday, whatever comes first.
Given your ex’s history I would recommend seeking an enforcement action against him to try to get him to pay. He could face possible incarceration, tax return interception, or loss of his license. The lone draw back is that he could seek to modify when you try to enforce but in reality he should not be paying for the older child anyway. A lot of times clients will ask me whether it is better to wait and make the debt larger prior to filing. For instance, in your case if you wait until the youngest child is 18 and then enforce Father will be on the hook for both kids for that entire time. If you file now and he modifies he will only be obligated for your youngest moving forward. The benefits are that you would actually be receiving money now, while the children are in your care and generally speaking money in hand is better than money down the line. If your ex keeps being underemployed you are not likely to receive large payments so you are likely to get insignificant payments far after the children are in your care. Receiving child support for 40 year old children is not terribly beneficial for the children or for you for that matter.
I would also look into whether or not your ex has any retirement accounts or any assets that could be sold. If your ex has retirement those funds may be used to pay off support debts. This is a great way to get him to pay. Generally speaking retirement accounts are the second largest asset that individuals have besides his/her homes. Retirement often is exempt from bankruptcy so your ex may have a means of paying you.
You definitely have options and are entitled to timely payments. It is important to enforce your right to payment. Good luck and as always if you have additional questions or concerns I recommend speaking with an experience family law attorney.