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What is willful underemployment in a Georgia child support case?


About a month ago, we discussed the ability of a Georgia family court to 'impute' a certain amount of income to a party who does not produce reliable evidence of income in a proceeding to determine child support. You may recall that, normally, in a proceeding for initial establishment of child support, that amount would be equal to a 40-hour work week at minimum wage. We did mention at that time, however, that in certain circumstances, an imputation to a different amount of income may be warranted.

Georgia Code Section 19-6-15(f)(4)(d) contemplates situations in which a parent is "willfully or voluntarily" un- or underemployed. According to the statute, this means that the trier of fact, be it the court or a jury, will evaluate the reasonableness of a party's employment decisions, taking into account the fact that the person has a responsibility to support his or her child. This might mean that the parent has made choices as to employment for the purpose of avoiding child support, but such a finding is not required. In fact, all a trier of fact need find is that there is a substantial likelihood that the person could utilize his or her skills, education or training to produce income with reasonable effort.

There are some specific factors the statute cites that courts may take into account when making this determination. The person's education, training, and past and present employment is the most obvious of these factors. However, the statute also mentions the issue of whether further education of training being undergone is reasonable in light of the parent's responsibility, and whether there are other factors involved, such as inability to work outside the home, or the necessity to be a care-giver to a disabled relative or young child.

The above is, of course, merely a thumbnail overview of what could be a very complicated process. Courts are often disinclined to impute income absent strong evidence that the person's choices are unreasonable. Anyone with questions as to how to deal with this sort of situation may wish to consider consulting an experienced Georgia family law attorney.

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