In the majority of cases, San Jose child support payments are based on the actual earnings of the person making the payments. In select circumstances, however, the Court may order payments based on imputed income. Typically, this occurs if there is evidence that the person responsible for support payments is not acting in good faith in regards to his or her efforts to maintain gainful employment. Normally the evidence will need to be strong and clear, and vague statements that you think the other party is shirking or being lazy will not be enough.
The two primary ways to get the kind of clear evidence you need to have income imputed are a Seek Work Order, or a Vocational Evaluation. There are other ways to get income imputed, as when someone actually intentionally quits their job and stupidly tells someone that they quit to avoid paying support, but while this approach works if you have the facts, you almost never do. If the other party has a substantial asset, like a parcel of real estate, that is currently earning no income, then the Court can assign an imputed rate of return to that asset as if it were money in the bank, but at current interest rates this avenue might not be as helpful as it was in the past.
With a Seek Work Order the Court will eventually bring the other party back, and ask them how their job seeking efforts have been going. If they did not look for work, then the Court can, and regularly does, impute minimum wage full time employment income. The real goal of the Seek Work Order is, of course, that the other parent actually get a job, in which case the Court will use their actual income, which hopefully is higher than minimum wage.
A Vocational Evaluation is prepared by a neutral professional who generally interviews the subject, and prepares a report stating his/her professional opinion regarding how much the other parent should be earning. The Courts in Santa Clara County generally follow the opinions of these professionals, and that can make this type of evidence very powerful. A report that states that the other parent should be earning $50,000 a year usually results in $50,000 a year in imputed income. A Vocational Evaluation can be expensive, as the professionals will charge for this service.
Remember that the intention of the parent paying support is a key factor in deciding if imputed income should be used. Child support payments aren’t based on imputed income if the paying parent is unemployed through no fault of his or her own and actively looking for work. Involuntary underemployment, such as having hours reduced from full-time to part-time due to a lack of available work from the employer, would also not qualify as a reason to use imputed income for child support.
When deciding if using imputed income for child support payments is appropriate, the Court can look at the previous earning history of the person paying support as well as any other factors relevant to their current earnings. If you have questions about whether the use of imputed income is appropriate to your case, it is best to speak to a qualified San Jose child support attorney.