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CALawyer
CALawyer, Lawyer
Category: Family Law
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Experience:  California Family Law Attorney
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How does the ability to pay and ability to earn work My

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How does the "ability to pay" and "ability to earn" work? My estranged husband is currently not working because the pharmaceutical plant that he was working at closed. He has been without a job since 10/07, but was paid his full pay until 4/08. He then applied for and received unemployment, in which I had his child support garnished from. I am assuming that his unemployment has ran out because I am not receiving support payments now. (We have a no contact order). I recently accepted a good paying position making more than I did when I was with him. His earning potential is still more than what I make, so how does the "ability to earn" work?
Submitted: 5 years ago.
Category: Family Law
Expert:  CALawyer replied 5 years ago.
Ability to earn is the idea that a support order is based on someone's earning capacity as opposed to their actual income.

It is exactly that. If you can establish that he could be earning $60,000 a year by working normal hours (not an unreasonable amount of over time) then, whether or not he actually is, that is what amount is used to set the support figure.

The idea behind this is that you don't want someone refusing to work just to deny you child support.

As far as ability to pay, that is a factor that is taken into account when determining the amount of child support, but it is more concerned with the expenses than the income. Say the husband should earn $60,000 and has reasonable annual expenses of $70,000... then he has little or no ability to pay. That doesn't necessarily mean they won't order him to pay anything or determine that the $70,000 in expenses aren't reasonable. Say, however, his expenses were $40,000 and he should be making $60,000. Then he should have the ability to pay. It doesn't matter whether he actually makes the $60,000 although the burden would be on you to prove that he should be making that much.

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Customer: replied 5 years ago.

The attorney's have requested joint tax records for the past three years in their interoggatories. Shouldn't this be sufficient to prove his ability to earn?

 

Also, we have a no-contact order between us because he abused my 13yr old son. The prosecutor filed for the no-contact between my estranged husband and that son and then the divorce judge, who said we could communicate for visitation purposes only for my younger two kids, put the no-contact back in effect. The estranged husband goes to court for the class d felony in January. If he's convicted, is it an automatic jail sentence or could he do community service or something else? Is it safe to assume that if he's convicted that I would automatically get sole legal custody?

Expert:  CALawyer replied 5 years ago.
That's definately one of the ways to do it. The other thing that would typically be done is finding employment listings for opportunities that are available. Its not enough that he just earned that much in the past, but you have to establish he has the ability to earn that much in the future.

He could probably just get a suspended sentence (only goes to jail if he violates probation)and probation for the class d felony if he plead it that way.

If this information was helpful, please click ACCEPT to give me credit for answering. Bonuses and positive feedback are appreciated if deserved. If you need any clarification, just post a reply. Thanks!
Customer: replied 5 years ago.
What about sole legal and physical custody if he is found guilty?
Expert:  CALawyer replied 5 years ago.
The only way you would automatically get sole legal and physical is if he was actually incarcerated. Then, during his incarceration, he couldn't have custody because he would be in jail/prison.

Other than that, if the felony was for abusing the children physically or sexually that would create a pretty strong presumption that you should get sole legal/physical.

If this information was helpful, please click ACCEPT to give me credit for answering. Bonuses and positive feedback are appreciated if deserved. If you need any clarification, just post a reply. Thanks!
CALawyer, Lawyer
Category: Family Law
Satisfied Customers: 1655
Experience: California Family Law Attorney
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