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How Does Earning Capacity Affect Child Support?

Tuesday, 09 March 2010

With high unemployment rates across the country, many families are struggling to make ends meet.  If you are entitled to child or spousal support, and your ex-spouse is not working, how does that affect your support order?  As a Colorado Springs divorce lawyer, I advise my clients to ask these questions:

  • Has your ex-spouse attempted to find work?
  • Is he/she being less than diligent about looking for a job?
  • Do you suspect that he/she is earning money “under the table”?

If you can answer “yes” to at least two of these questions, then a Colorado court has the power to uphold your support order based on your ex-spouse’s earning capacity.  In many cases, the court will consider looking at their past earning history, education level and skills to calculate their ability to earn income.  Even if your ex is collecting disability, unemployment benefits or workers’ compensation, a court may order that income to be used as a basis for paying support. 


Family court judges often see support-obligated spouses try to hide income or intentionally drag their feet in finding work, just to make it more difficult for their ex to collect support.  When a pattern of repetitive unemployment exists, it is important to start showing these patterns to the court.  If the court decides to base your spouse’s earning capacity on their prior income, you may be surprised to see how quickly they find a job. 

At the very least, the court may order your ex-spouse to produce evidence of their job search efforts at the next hearing. Meanwhile, your support order will be based on what your spouse would be earning if he or she were working.  And remember, your support order cannot be discharged due to bankruptcy.

If you have reason to believe that your spouse is intentionally trying to get out paying their Colorado court-ordered support, then Colorado Springs divorce lawyer can ask the court to base their decision on earning capacity.

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