Voluntary Underemployment or Unemployment in Tennessee Child Support Guidelines

Voluntary Underemployment or Unemployment in Tennessee Child Support Guidelines

In Tennessee child support and divorce law, voluntary underemployment or unemployment has always been a hot topic. The incorporation of the income shares child support rules did not change Tennessee law.  They simply summarized what had been the law.

In the Tennessee Child Support Guidelines, voluntary underemployment or unemployment is considered “imputed income.”  Imputed income became a much more important issue with the income shares model because the stay-at-home parent (presumably the primary residential parent) can face a claim of voluntary underemployment which impacts both alimony and child support.  The argument can be made that Tennessee law requires that a parent’s income should be set at his her or earning capacity and not necessarily what the parent actually earns.

Of particular importance is the sentence discussing “intentional choice or act.”  When drafting this provision of the Tennessee Child Support Guidelines, the Department of Children’s Services probably intended to include criminal acts and/or intentional use of alcohol.  For example, the parent who is fired for habitual absenteeism, but claims innocent job loss, is less likely to be able to obtain a reduction of child support based on lack of employment when that absenteeism was caused by excessive drinking.

Below is the section dealing with Imputed Income from the Tennessee Child Support Guidelines:

2. Imputed Income.

(i)                Imputing additional gross income to a parent is appropriate in the following situations:

(I)                       If a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed; or

(II)                    When there is no reliable evidence of income; or

(III)                 When the parent owns substantial non-income producing assets, the court may impute income based upon a reasonable rate of return upon the assets.

(ii)             Determination of Willful and/or Voluntary Underemployment or Unemployment.

The Guidelines do not presume that any parent is willfully and/or voluntarily under or unemployed. The purpose of the determination is to ascertain the reasons for the parent’s occupational choices, and to assess the reasonableness of these choices in light of the parent’s obligation to support his or her child(ren) and to determine whether such choices benefit the children.

(I)                       A determination of willful and/or voluntary underemployment or unemployment is not limited to choices motivated by an intent to avoid or reduce the payment of child support. The determination may be based on any intentional choice or act that adversely affects a parent’s income. Criminal activity and/or incarceration shall not provide grounds for reduction of any child support obligation. Therefore, criminal activity and/or incarceration shall result in a finding of voluntary underemployment or unemployment under this section, and child support shall be awarded based upon this finding of voluntary underemployment or unemployment.

(II)                    Once a parent that has been found to be willfully and/or voluntarily under or unemployed, additional income can be allocated to that parent to increase the parent’s gross income to an amount which reflects the parent’s income potential or earning capacity, and the increased amount shall be used for child support calculation purposes. The additional income allocated to the parent shall be determined using the following criteria:

  1. The parent’s past and present employment; and
  2. The parent’s education and training.

(III)                 A determination of willful and voluntary unemployment or underemployment shall not be made when an individual enlists, is drafted, or is activated from a Reserve or National Guard unit, for full-time service in the Armed Forces of the United States.

Tennessee Child Support Guidelines, August 2008.

For more information, see Voluntarily Unemployed or Underemployed in Tennessee Child Support Law.

Memphis divorce attorney, Miles Mason, Sr., JD, CPA, practices family law exclusively with the Miles Mason Family Law Group, PLC in Memphis, Tennessee serving clients in Germantown, Collierville and the west Tennessee area.  To learn more about Tennessee child support laws, read and view:

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4 thoughts on “Voluntary Underemployment or Unemployment in Tennessee Child Support Guidelines

  1. A determination of willful and/or voluntary underemployment or unemployment is not limited to choices motivated by an intent to avoid or reduce the payment of child support. The determination may be based on any intentional choice or act that adversely affects a parent’s income. Criminal activity and/or incarceration shall not provide grounds for reduction of any child support obligation. Therefore, criminal activity and/or incarceration shall result in a finding of voluntary underemployment or unemployment under this section, and child support shall be awarded based upon this finding of voluntary underemployment or unemployment. (What if they are incarcerated for months on a false charge and the case is drop due to lack of evidence. )

  2. That’s a great question. The trial judge must make a judgment call. If I were representing the parent owing child support, I would argue actual innocense. If I were representing the parent receiving child support, I would argue that lack of evidence doesn’t mean the parent owing child support is not actually guilty of the crime and child support should be owed because the child’s expenses never stopped. Certainly, it would be a challenging hearing in such a case.

  3. I see a lot of comments in regard to the parent paying child support being the one attempting to lower thier payment requirement by not working or underworking. However, I have seen nothing about the parent recieving the support willfully and intentionally not working in order to increase the amount of support the paying parent supplies to the child. In Tennessee both parents income is calculated to determine the amount of monies a child is required. So my question is: What can the paying parent do about a recieving parent that is intentionally not working so as to recieve more money from the ex-spouse?

    • Great question. The analysis for voluntary underemployment and/or unemployment applies to both parents equally! In my practice, we make that argument often. I don’t always see other lawyers making the argument. There is somewhat on an exception for stay at home parents who, during the marriage, stayed at home by agreement of the parents when they lived together. Even then, though, there is the legal argument that the stay at home parent still has an earning capacity!

      Miles Mason, Sr.
      Attorney, Miles Mason Family Law Group, PLC, Serving clients in Memphis • Germantown • Collierville • West Tennessee. MemphisDivorce.com. We aim to be your best option for finding a Memphis divorce lawyer, Germantown divorce lawyer, or Collierville divorce lawyer.
      The response above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this site is available for public viewing and is not intended to create an attorney-client relationship with any individual. Answers are provided for informational purposes only. A person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

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