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Does running a family business constitute voluntary underemployment when calculating child support?

Posted by Jess A. Lorona | Sep 09, 2017 | 0 Comments

calculating child support

Understanding Voluntary Underemployment in Child Support Cases

While the standard calculations for child support in Florida are fairly straightforward, parties engaged in a contentious divorce often find issues to raise with the amount of child support awarded–and, of course, divorces can easily become contentious when children are involved. For example, claims of voluntary under- or unemployment by one party can lead to serious questions about the appropriate amount of child support.

The heart of the issue is determining what constitutes voluntary under- or unemployment. In general, Florida statute allows the trial court to take into consideration foregone income when calculating child support due if one party is determined to be under- or unemployed–but what do courts consider when weighing this issue?

The case of Gillette v. Gillette examines the matter closely. Joseph and Andrea Gillette were formerly married. During the course of their marriage, Joseph left his $90,000-a-year job in order to start his own business. Andrea supported her then-husband in this endeavor. However, while Joseph's business provided the family with certain advantages including scheduling flexibility that allowed him to take care of their son, his income dropped dramatically; he never made more than $13,000 annually in the nine years between the business' inception and the divorce.

Andrea Gillette claimed that her former spouse should be considered voluntarily underemployed for the purposes of calculating child support. The trial court disagreed, and the Fourth District Court of Appeal sided with the trial court.

For the appellate court, two issues were at the heart of their determination. First, while Andrea brought in expert testimony regarding Joseph's earning potential, the expert didn't take into consideration technological changes in Joseph's industry since he left outside employment; this was key as Joseph had been out of his former fast-changing industry for more than a decade. Second–and perhaps more importantly–the spouses were in agreement while still married that Joseph should maintain his business rather than seeking formal employment.

In short, while voluntary underemployment can affect child support decisions in Florida, the fact that one former spouse could potentially earn more by leaving their business for a formal job isn't enough to prove the issue. Consult with an experienced attorney such as the family attorney Phoenix locals trust.

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Jess A. Lorona



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