There is a Uniform Child Support Formula in Michigan that binds courts in making child support determinations.
Child support is predominantly determined based on the income of each party and the amount of overnights each spends with the children. All income is counted in child support including: base pay, overtime, flextime, bonuses, housing allotments, etc. If a parent has significant changes in income in recent years, it is common for our judges to take an average of the past three years.
Clients commonly ask if child support can be negotiated. The answer is not easy. Some judges will allow parties to agree upon an amount and will sign a Uniform Child Support Order that they consent to. Other judges will only deviate from the state formula upon a compelling set of circumstances. Our firm can advise you how your judge will handle each situation.
Another frequent question by clients is the matter of “imputing” income to one parent. A trial court has the discretion to impute income to a party when they voluntarily reduce or eliminate income or when it finds that a party has a voluntarily unexercised ability to earn. Stallworth v. Stallworth, 275 Mich.App 282, 285; 738 NW2d 264 (2007). However, the court cannot impute income based on speculation or emotional theories on what a party’s income should be or could be. Loutts v. Loutts, 826 N.W.2d 152 (2012). “Generalized assumptions” and “failing to articulate information about how each factor in Sec. 2.01 (G)(2) applies to a [party] having the actual ability and reasonable likelihood of earning the imputed income, or failing to state that a specific factor does not apply” is contrary to case law and courts will not impute income. Michigan Child Support Formula 2.01 (G)(4)(c).
If a parent is underemployed the court can impute income based on various factors such as, (1) Prior employment experience and history, including reasons for any termination or changes in employment, (2) Educational level and any special skills or training, (3) Physical and mental disabilities that may affect a parent’s ability to work, or to obtain or maintain gainful employment, (4) Availability for work (exclude periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.), (5) availability of opportunities to work in the local geographical area, (6) The prevailing wage rates and number of hours of available work in the local geographical area, (7) Diligence exercised in seeking appropriate employment, (8) Evidence that the parent in question is able to earn the imputed income, (9) personal history, including present marital status, present means of support, criminal record, ability to drive, and access to transportation, etc, (10) The presence of the parties’ children in the parent’s home and its impact on that parent’s earnings, (11) Whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification.
Our firm has argued many cases involving the theory of imputed income. Commonly, if one parent is not working and is healthy, they will be imputed at minimum wage. To go beyond that, the Court will look at all relevant factors while paying special attention to a parent’s work history and education. Said differently, you can’t simply “quit” your job to avoid support – nor does that make sense.
As part of child support, a parent will get credit for having other children they support with another parent and health care costs. Child support only goes back to the date of filing. If you are not receiving child support, an immediate filing is of vital importance. Along these lines, if you have had an involuntarily reduction in income, the court can only give you relief on your child support from the date you file your request to modify support.
