What happens when one parent refuses to work, voluntarily quits a well-paying job, or substantially reduces their earnings while the other parent continues bearing the financial responsibility for supporting the children?
Can a California court calculate child support based on what that parent could earn rather than what the parent actually receives?
Yes. Under appropriate circumstances, California courts may attribute income to an unemployed or underemployed parent based on earning capacity rather than actual earnings.
California Family Code section 4058(b) authorizes courts to consider a parent’s earning capacity when calculating child support. However, the decision must be supported by evidence and must satisfy the statutory requirements.
California courts apply a two-prong test for determining earning capacity:
These requirements are commonly associated with In re Marriage of Regnery (1989) 214 Cal.App.3d 1367 and are discussed extensively in In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291.
Both prongs must be supported by evidence.
The court must also separately consider whether using earning capacity is consistent with the children’s best interests, including their overall welfare, developmental needs, and the time the parent spends with them.
Importantly, California law no longer requires proof that a parent deliberately refuses employment for the purpose of avoiding child support. The former bad-faith limitation associated with Philbin v. Philbin (1971) 19 Cal.App.3d 115 was displaced by the statewide child support guideline.
Nevertheless, the elimination of the former bad-faith requirement does not authorize courts to assign arbitrary income to an unemployed parent.
At Edgar & Dow, we examine employment history, education, professional qualifications, available employment opportunities, prevailing wages, childcare responsibilities, and other relevant circumstances when evaluating disputed earning capacity.
The question is not simply whether a parent is unemployed.
It is whether the evidence establishes the ability and opportunity to earn income at a particular level and whether attributing that income is appropriate under California law.
Imputing income means using an amount a parent has the capacity to earn rather than relying exclusively on the parent’s actual earnings.
Suppose a parent previously earned $95,000 annually but is currently unemployed.
The other parent may believe child support should continue to be calculated as though the unemployed parent earns $95,000.
However, a former salary does not automatically establish current earning capacity.
The court must determine whether the parent presently has the qualifications and ability to perform suitable work and whether appropriate opportunities to earn the proposed income exist.
A previous salary may be relevant evidence, particularly where the parent recently left comparable employment and similar opportunities remain available.
But the analysis may be different when the parent has been unemployed for several years, has significant health limitations, or formerly worked in an occupation where opportunities have materially changed.
The court should not attribute income merely because the parent once earned a particular amount.
The proposed income figure must be supported by evidence.
California’s earning-capacity analysis requires examination of two distinct questions: ability to work and opportunity to work.
The distinction comes from the principles developed in In re Marriage of Regnery (1989) 214 Cal.App.3d 1367 and subsequent appellate decisions.
The first prong addresses whether the parent possesses the skills, qualifications, physical and mental capacity, and other characteristics necessary to perform suitable employment.
The second prong addresses whether there is a realistic opportunity for the parent to apply those abilities to produce income.
Both elements matter.
A parent may possess extensive qualifications but lack realistic employment opportunities at the proposed salary.
Conversely, available jobs may exist, but the parent may lack the qualifications or capacity to perform them.
A court cannot properly determine earning capacity by establishing only one of these elements.
The evidence must support both the parent’s earning ability and the opportunity to earn the amount being attributed.
The court then considers whether using that earning capacity is consistent with the children’s best interests.
That best-interests inquiry is a separate statutory limitation on the exercise of discretion, not a replacement for either prong of the earning-capacity test.
The first prong concerns the parent’s ability to perform employment and generate income.
Relevant evidence may include education, training, professional licenses, employment experience, technical skills, health, age, and other circumstances affecting work capacity.
For example, a parent who recently worked as a registered nurse may possess education, licensing, and practical experience supporting the ability to perform nursing duties.
Similarly, an attorney, accountant, or other licensed professional may possess specialized qualifications associated with employment opportunities.
However, qualifications do not automatically establish the ability to earn every salary associated with the profession.
A parent’s current ability may be affected by licensing status, experience, health limitations, or the requirements of the proposed employment.
A parent who previously earned a substantial salary in a specialized occupation may no longer possess the same employment capabilities.
The evidence should establish what the parent can realistically do at the time support is determined.
It is not enough to assert that the parent is educated, intelligent, or physically capable of performing some type of work.
The evidence should connect those abilities to the particular income the court is being asked to attribute.
The second prong concerns whether the parent has a realistic opportunity to apply their abilities to earn income.
Employment opportunities may be demonstrated through evidence of suitable positions, labor-market conditions, prevailing compensation, and other circumstances affecting the parent’s ability to obtain work.
In In re Marriage of Smith (2001) 90 Cal.App.4th 74, the Court of Appeal discussed opportunity to work in terms of the substantial likelihood that a parent could apply their education, skills, and training through reasonable efforts to produce income.
This is an important distinction.
Opportunity does not necessarily mean that a parent has already received a job offer.
Nor does it necessarily require evidence that a particular employer would definitely hire the parent.
Rather, the court examines whether opportunities reasonably exist for the parent to apply their qualifications to earn the proposed income.
For example, current job postings for positions consistent with a parent’s qualifications may help establish employment opportunity.
But a collection of unrelated job advertisements does not necessarily establish that a parent qualifies for those positions or can earn the salary requested.
The evidence should connect the available work to the parent’s particular background and qualifications.
No. California law generally does not require the party seeking income imputation to prove that a particular employer would actually hire the other parent.
The distinction is between demonstrating realistic employment opportunities and guaranteeing that the parent would receive a specific offer.
In In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, the Court of Appeal considered evidence of available teaching positions in determining earning capacity.
In In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, the court addressed the evidentiary requirements associated with employment opportunities and a parent’s ability to obtain work.
These decisions illustrate why a parent cannot necessarily defeat an earning-capacity request simply by refusing to apply for available positions.
The parent requesting imputation must first present competent evidence supporting the two prongs of the test.
That ordinarily means establishing the parent’s qualifications and identifying suitable opportunities to earn at the proposed level.
Once an adequate showing has been made, the parent opposing imputation may need to demonstrate that employment at the proposed level was not reasonably obtainable despite appropriate efforts, or that other circumstances prevent the proposed imputation.
Family Code section 4058(b)(2) expressly identifies the availability of employers willing to hire as one factor the court must consider, to the extent known.
However, that statutory consideration does not impose an independent requirement to prove that a particular employer would actually select the parent for employment.
The court must evaluate the evidence concerning ability and opportunity rather than demand proof of a guaranteed job offer.
In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291 is a particularly important decision concerning the evidence necessary to support income imputation.
The case involved a wife who retired from employment as a deputy sheriff at age 42 after approximately twenty years of service.
Her retirement involved stress affecting her and her family.
The husband sought to have earning capacity attributed to her based on her former employment.
However, he did not establish that she could return to work as a deputy sheriff or that suitable opportunities existed for her to earn additional income in related employment.
The Court of Appeal upheld the trial court’s refusal to impute income.
The decision illustrates why proof of a former salary and a voluntary decision to retire does not automatically establish present earning capacity.
The husband had not developed sufficient evidence supporting the wife’s ability and opportunity to earn the income he sought to attribute.
This is the central lesson of Bardzik.
A parent requesting imputation must establish a factual foundation for both prongs of the test.
The court should not assume that the parent can return to previous employment merely because the parent once held that position.
For example, if a parent formerly earned $100,000 annually, the opposing party should be prepared to present evidence supporting the availability of suitable work at an appropriate income level.
That evidence might include current employment opportunities, relevant qualifications, compensation information, or vocational analysis.
Without such evidence, the proposed earning-capacity figure may be speculative.
The party requesting imputation generally has the initial burden of establishing the other parent’s ability and opportunity to earn income at the proposed level.
That burden requires more than showing that the parent is unemployed or once earned substantial wages.
Suppose one parent requests that the court attribute $85,000 annually to the other parent.
The evidence should support why that parent has the qualifications necessary to earn approximately $85,000 and why realistic opportunities exist to generate that income.
A resume may establish relevant qualifications.
Prior employment records may establish experience.
Job postings and compensation information may help establish available opportunities and prevailing wages.
Vocational evidence may be useful when the circumstances are disputed or complicated.
Once the requesting party presents an adequate showing, the parent opposing imputation may need to explain why employment at that level is not realistically obtainable or why individual circumstances prevent such employment.
This does not relieve the requesting party of the obligation to establish a legally sufficient evidentiary foundation.
Nor does it authorize the court to impute income without considering the children’s best interests.
The objective is to determine an appropriate earning capacity based on the evidence, not assumptions.
No.
Historically, California courts applied a narrower rule associated with Philbin v. Philbin (1971) 19 Cal.App.3d 115.
Under that former approach, courts focused on whether the parent was intentionally avoiding support responsibilities by refusing employment or suppressing income.
However, enactment of California’s statewide guideline displaced that limitation.
In In re Marriage of Destein (2001) 91 Cal.App.4th 1385, the Court of Appeal recognized that the former Philbin approach did not survive enactment of Family Code section 4058.
Accordingly, proof of bad faith is not a mandatory element of the modern earning-capacity analysis.
The court may consider earning capacity even when a parent has not deliberately attempted to avoid support.
Nevertheless, a parent’s motivation for reducing income may remain relevant when the court exercises its discretion.
A parent who intentionally abandons employment immediately before a support hearing may present different circumstances from a parent who reduces working hours to address substantial childcare responsibilities.
The law does not require the court to ignore those circumstances.
It requires an individualized determination under the statutory framework.
A parent may decide to pursue additional education or change careers.
However, that decision does not automatically excuse existing child support responsibilities.
In In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, the father left employment as a pharmacist to pursue medical school.
Although his decision reflected a longstanding ambition to become a physician, the court upheld consideration of his earning capacity as a pharmacist.
The decision recognizes that a parent’s financial obligations to existing children remain important when the parent chooses a different professional path.
A career change may be undertaken in good faith while still creating circumstances in which earning capacity may properly be considered.
However, Ilas does not establish that every educational decision automatically requires imputation.
The court must apply the governing statutory standards and determine whether the evidence supports the proposed earning capacity.
A similar issue arose in In re Marriage of Padilla (1995) 38 Cal.App.4th 1212.
The father left employment paying approximately $6,000 per month to start a business.
The business had not become profitable by the time the support issue was considered, despite an opportunity for the venture to develop.
The court upheld using earning capacity under the particular circumstances.
Padilla illustrates why a parent cannot necessarily reduce a support obligation simply by leaving substantial employment to pursue a new business venture.
But the decision must be read together with the later decision in Bardzik.
The fact that a parent voluntarily changes careers does not establish an automatic rule requiring income to be attributed at the parent’s highest historical earnings.
The court must consider the two prongs of earning capacity, the surrounding circumstances, and the children’s best interests.
Bardzik is important because it clarified language in Padilla concerning a parent’s motivation for reducing income.
Earlier language in Padilla had been interpreted to suggest that the parent’s reasons for reducing earnings were irrelevant whenever earning ability and opportunity existed.
In Bardzik, the Court of Appeal rejected that inflexible interpretation.
The court recognized that motivation may be relevant when determining whether to exercise discretion to impute income.
For example, a parent may leave stressful, time-consuming employment to spend more time caring for the children.
That decision may affect the statutory best-interests analysis.
Conversely, a parent who voluntarily reduces earnings primarily to avoid support responsibilities may present circumstances favoring consideration of earning capacity.
The court must evaluate the evidence rather than apply an automatic rule.
A voluntary income reduction does not necessarily excuse support, but neither does it automatically require imputation at the parent’s highest prior income.
Yes, in appropriate circumstances.
The opportunity-to-work prong is not limited to conventional salaried employment.
A parent with marketable professional or trade skills may have opportunities to generate income through self-employment.
In In re Marriage of Cohn (1998) 65 Cal.App.4th 923, the Court of Appeal recognized that a self-employable professional may have an opportunity to earn by applying marketable skills.
For example, an attorney who cannot find salaried employment may still have opportunities to earn through private practice, contract work, referrals, or other professional services.
A skilled tradesperson may similarly have opportunities to perform independent work.
However, the opportunity must have an evidentiary foundation.
The court cannot simply assume that professional credentials automatically translate into a particular amount of self-employment income.
The relevant question is whether there is a substantial likelihood that the parent can use marketable skills to generate the proposed earnings through reasonable efforts.
Not automatically.
In In re Marriage of Simpson (1992) 4 Cal.4th 225, the California Supreme Court addressed a parent’s earning capacity after the parent reduced an extraordinary work schedule.
The father had worked substantial overtime, sometimes involving multiple jobs and exceptionally long days.
After separation, he shifted to lower-paying employment with a more conventional schedule.
The trial court concluded that the father had reduced his earnings primarily to avoid support responsibilities.
The Supreme Court recognized that earning capacity could properly be considered under those circumstances.
However, the court also concluded that the amount attributed had not been adequately supported by evidence showing that the father could earn that income through an objectively reasonable work regimen.
The decision establishes an important limitation.
A parent cannot automatically avoid child support by voluntarily reducing employment.
But a parent also should not automatically be required to maintain an extraordinary work schedule merely because that schedule previously generated substantial income.
The court must determine what the parent can reasonably earn.
Simpson does not impose a universal forty-hour workweek limitation.
Reasonable working hours depend on the occupation, working conditions, available opportunities, and other relevant circumstances.
A professional license may establish important qualifications relevant to the ability-to-work prong.
For example, a parent may hold a license as a physician, registered nurse, attorney, accountant, or another professional.
That license may demonstrate specialized training and skills.
However, the court must separately evaluate opportunity to work.
The parent may possess the ability to perform a profession but face limitations affecting currently available employment.
Relevant considerations may include the parent’s recent experience, current qualifications, health, licensing requirements, and suitable employment opportunities.
A recently employed professional who voluntarily leaves a position may present a stronger case for imputation than someone who has been outside the profession for many years.
The court must determine whether the evidence supports the particular income requested.
The existence of a professional license is important, but it does not automatically establish earning capacity at the highest salary associated with that profession.
Yes.
A vocational evaluation may be useful when the parties dispute a parent’s qualifications, available employment opportunities, or realistic earning potential.
A vocational expert may examine education, training, employment experience, professional credentials, and labor-market conditions.
The expert may also identify suitable occupations and available compensation.
This evidence can assist in establishing one or both prongs of the earning-capacity test.
However, a vocational examination is not automatic.
In Mercado v. Superior Court (Wolf) (2024) 106 Cal.App.5th 1143, the Court of Appeal addressed vocational examinations under Family Code section 4058.
A party seeking such an examination must make at least a preliminary showing that the other parent has an ability and opportunity to earn income and that the proposed examination would be consistent with the children’s best interests.
Therefore, a vocational examination should not be ordered merely because one parent believes the other should be working.
The request must have an appropriate evidentiary and statutory foundation.
Yes.
Even when both prongs of the earning-capacity test are supported, the court must consider whether using earning capacity is consistent with the children’s best interests.
Family Code section 4058(b) directs consideration of the children’s overall welfare, developmental needs, and the time the parent spends with them.
This is a separate statutory requirement governing the court’s discretion.
For example, a parent may possess the qualifications and opportunities necessary to earn additional income but also provide extensive daily care for young children.
The court must consider those circumstances.
In In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, the Court of Appeal upheld a decision declining to attribute full-time earning capacity to a parent who had reduced working hours to spend additional time caring for the children.
The decision illustrates why maximizing income is not invariably consistent with the children’s best interests.
However, primary custody does not automatically exempt a parent from imputation.
The court must evaluate the facts and statutory considerations.
A parent with substantial caregiving responsibilities may face employment limitations.
The court should consider those responsibilities when evaluating earning capacity.
Relevant circumstances may include the children’s ages, developmental needs, available childcare, and the time required to provide care.
For example, a parent who cares for a young child with significant developmental needs may face limitations that differ from those of a parent whose children are older and attend school full time.
The court must consider those circumstances rather than automatically attribute full-time earnings.
Nevertheless, a parent cannot avoid the earning-capacity analysis solely by having primary custody.
California law generally imposes financial responsibility on both parents.
The appropriate determination must be consistent with the children’s best interests and supported by the evidence.
Potentially, but medical circumstances are relevant to the ability-to-work prong.
Family Code section 4058(b)(2) identifies health among the factors affecting earning capacity.
A medical condition may limit the parent’s ability to perform a particular job, work a certain schedule, or return to previous employment.
However, a diagnosis alone does not necessarily establish complete inability to work.
Likewise, the absence of total disability does not establish that the parent can perform every occupation at the former salary.
The court may need medical records, employment restrictions, or other reliable evidence concerning functional limitations.
The appropriate question is what the parent can realistically perform and whether opportunities exist to earn the proposed income under those limitations.
The court should not rely on unsupported assumptions in either direction.
A termination of employment does not automatically establish earning capacity at the former salary.
The reasons for termination may be relevant.
In In re Marriage of Eggers (2005) 131 Cal.App.4th 695, the Court of Appeal addressed employment termination and earning capacity.
A termination arising from conduct that effectively amounts to a voluntary relinquishment of employment opportunities may be evaluated differently from a genuine involuntary job loss.
However, the court must still have a legally sufficient foundation for determining ability and opportunity to earn.
A parent who loses employment because a business closes may face different circumstances from someone who deliberately abandons available employment.
The court must examine the actual facts.
Being fired does not automatically require imputation, nor does it automatically prevent it.
The amount attributed must be supported by competent evidence.
A court should not simply select a salary because the parent is educated, previously earned substantial income, or appears capable of working.
In In re Marriage of Cohn (1998) 65 Cal.App.4th 923, the Court of Appeal emphasized the importance of a tangible evidentiary foundation for imputed income.
Similarly, Bardzik illustrates why earning-capacity findings require evidence supporting the proposed amount.
Suppose a parent has extensive bookkeeping experience.
If the evidence establishes realistic employment opportunities corresponding to that experience and prevailing compensation of approximately $55,000 annually, those facts may provide a foundation for an earning-capacity determination.
However, attributing $120,000 without evidence supporting realistic opportunities at that level would present a different question.
The court should identify an income figure supported by the parent’s ability and opportunity to earn.
That figure then becomes relevant to the guideline support calculation.
An effective presentation begins with evidence addressing the two prongs of the test.
For ability to work, relevant records may include resumes, employment history, education, professional licenses, and evidence of physical or mental work capacity.
For opportunity to work, relevant evidence may include suitable job postings, employer information, prevailing wages, labor-market conditions, and vocational analysis.
If the parent voluntarily reduced income, the reasons for the change may also be relevant.
A parent opposing imputation may present evidence concerning job-search efforts, medical limitations, childcare obligations, employment barriers, or other circumstances affecting realistic earning potential.
The court must then consider the children’s best interests.
A request should not rest solely on one parent’s belief that the other parent could be earning more.
Likewise, a parent opposing imputation should be prepared to explain the circumstances rather than rely exclusively on a statement that employment has not been found.
An adequate evidentiary record is essential to a legally supportable determination.
Once the court determines an appropriate earning-capacity figure, that amount may be used in the child support calculation under Family Code section 4058(b).
The guideline calculation must still consider the other relevant statutory factors.
These include both parents’ income, parenting time, allowable deductions, and other applicable circumstances.
At Edgar & Dow, we use Xspouse to calculate California guideline child support.
However, the software cannot determine whether a parent has the ability and opportunity to work, whether an income figure is supported by labor-market evidence, or whether imputation is consistent with the children’s best interests.
Those questions require legal and factual analysis.
Only after the income determination has been made can the appropriate figures be incorporated into the guideline calculation.
The court examines whether the parent has the ability to work and the opportunity to work at the proposed income level. Both requirements must be supported by evidence.
No. The former Philbin bad-faith requirement has been displaced by Family Code section 4058.
Bardzik emphasizes the need for evidence supporting ability and opportunity to earn and rejects automatic reliance on a parent’s former salary or voluntary income reduction.
No. The requesting parent generally must establish realistic employment opportunities, but is not ordinarily required to prove that the other parent would actually receive a particular job offer.
Potentially. In re Marriage of Ilas addresses a pharmacist who voluntarily left employment to pursue medical school.
Potentially. In re Marriage of Padilla addresses a parent who left substantial employment to pursue an unsuccessful business venture.
No. The court must evaluate earning ability, opportunity, the circumstances of the employment change, and the children’s best interests.
A license may support the ability-to-work prong, but the court must also evaluate realistic opportunities to earn the proposed income.
No. Under Mercado, a party requesting an examination must make an appropriate preliminary showing concerning earning ability, opportunity, and the children’s best interests.
Not automatically. Under In re Marriage of Simpson, earning capacity generally must reflect an objectively reasonable work regimen.
California courts may consider earning capacity rather than actual earnings when determining child support.
However, the determination requires more than proving that a parent is unemployed.
The court must evaluate the two prongs of the earning-capacity test: ability to work and opportunity to work.
The former Philbin rule requiring proof of deliberate avoidance is no longer controlling.
The modern framework also requires consideration of the parent’s individual circumstances and the children’s best interests.
In re Marriage of Bardzik emphasizes the importance of developing evidence of earning ability and opportunity.
Ilas and Padilla illustrate circumstances where voluntary career changes supported attribution of earning capacity.
Simpson establishes important limitations concerning extraordinary work schedules.
Mercado addresses the statutory requirements governing vocational examinations and the children’s best interests.
Together, these decisions demonstrate why earning capacity must be determined through evidence rather than assumptions.
A parent should not automatically avoid financial responsibility by refusing realistic employment opportunities.
But neither should a parent be required to pay support based on hypothetical income that the evidence does not establish the parent can reasonably earn.
If you believe the other parent is voluntarily unemployed, deliberately underemployed, or earning substantially less than their demonstrated capacity, the issue may materially affect your child support calculation.
Likewise, if you are being asked to pay support based on income you cannot realistically earn, the proposed earning-capacity determination may require careful examination.
Edgar & Dow represents parents throughout Riverside County, including Riverside, Temecula, Murrieta, and Southern California.
Our attorneys handle child support calculations, disputed income determinations, earning-capacity issues, vocational evidence, and modification of existing support orders.
We examine employment histories, financial records, available job opportunities, and the applicable California authorities before preparing guideline child support calculations using Xspouse.
Whether you are seeking to establish earning capacity or challenging an unsupported request to impute income, our firm can evaluate the evidence and explain your legal options.
Contact Edgar & Dow at 951-684-6885 to schedule a consultation.
Visit https://www.edgarfamilylaw.com/ to learn more about our family law practice.
This article provides general information about California family law and does not constitute legal advice concerning a particular case.
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