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:
- The parent’s past and present employment; and
- 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:
- Tennessee Child Support & Divorce Law Answers to FAQs
- How to Modify Child Support in Tennessee
- Tennessee Child Support Law Video Series
- Tennessee Child Support Resources
- Top 6 Tennessee Child Support Strategies