After separating, the question becomes whether that spouse can simply not work or contribute to support for themself or his or her minor children. For example, in some family scenarios, one spouse may stay at home while the other works during the marriage and expects to remain at home even after a separation, or one spouse may leave his or her job after a separation simply because they expect to receive support from his or her spouse. In North Carolina, alimony and child support obligations are determined by a party’s actual present income but is also partially based on a party’s ability to pay, the standard of living during the marriage, the actual needs and expenses of the spouse to receive support, and the actual needs and expenses of the child or children, if both parties are off guidelines. Earning capacity rather than actual income can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation.
For purposes of child support, the court will look at whether one parent has acted in “bad faith” with regards to his or her child support obligation. Under the Child Support Guidelines:
“If the court finds that the parent’s voluntary unemployment or underemployment is the result of the parent’s bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation, child support may be calculated based on the parent’s potential, rather than actual, income.”
A trial court can impute income for purposes of determining child support to a parent only if there is a finding of bad faith. If the court finds that a parent’s voluntary underemployment or unemployment is the result of the parent’s bad faith or deliberate suppression of income to avoid or minimize the parent’s child support obligation, the court may calculate child support based on the parent’s potential, rather than actual income. The amount of potential income imputed to a parent must be based on the parent’s assets, residence, employment potential, and probable earnings level, based on the parent’s recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community and other relevant background factors relating the parent’s actual earning potential. If the parent has no recent work history or vocational training, potential income should not be less than the minimum hourly was for a 35-hour workweek. It is important to note that potential income may not be imputed to a parent who is physically or mentally incapacitated or who is caring for a child who is under the age of three years for whom child support is being determined.
In the context of alimony, bad faith means that the spouse is not living up to income potential in order to avoid or frustrate the support obligation. Bad faith for the dependent spouse means shirking the duty of self-support.
However, the trial court has a great deal of discretion in determining when a party has acted in bad faith. Evidence will need to be presented about bad faith and a determination will need to be made by the Judge as to whether the party will be responsible for supporting themself or the minor children and if so, in what amount.
If you or someone you know may have a matter where any of the above-mentioned situations are involved, contact Hatcher Law Group for a consultation with an experienced family law attorney to understand your rights and options moving forward.