Will I Still Have To Pay Support If My Income Decreases?

Spouses who have been ordered to pay child or spousal support sometimes wonder if they can find relief from making support payments by taking a lower paying job. What these payors must realize is that taking a pay cut may not mean a lower support payment.

The Court has the discretion to calculate support using a party’s earning capacity rather then their actual income. In these situations, the Court can tell a party that even though they are no longer making $300,000 because they have changed careers and are now making $70,000, the court may still calculate support as if that party were making $300,000. This is especially true where the court believes that a party has elected to take a decrease in pay in order to shirk their support responsibilities. A CEO who has a revelation within months of filing for divorce and decides that his true calling is to be starving artist may be disappointed to find that he will still have to pay support at his CEO rate.

The earning capacity standard may even be applied in situations where a payor has left a high-paying position in good faith. For example, in Marriage of Ilas, the supporting spouse quit his job as a pharmacist to enroll in medical school. The Court held that although the payor did not quit his job in bad faith, he was nonetheless held to the earning capacity standard and the Court considered his earning capacity when calculating support. One case where the payor was able to take a lower paying position was Marriage of Meegan, in which the Court held that where the payee was capable of supporting herself, the Trial Court properly terminated the payor’s obligation when he voluntarily resigned a high-paying job to enter the monastery.

The Meegan case states that there are no clear rules for these cases and each situation must be analyzed on an individual basis. It has been suggested that the courts, in what seems to be an act of self-preservation, would expand the holding of Meegan to allow a highly paid attorney to accept a position on the bench and reduce support accordingly. Payors who are not considering entering the monastery or taking a position as a judicial officer, should seriously consider consulting their attorney before making career changes because even though their income may be significantly reduced, their support obligations could remain the same.