Imputed Income and Burden of Proof in Divorce Cases

Everyone knows that being involved in any legal process, even Small Claims Court, involves some degree of emotion. Divorce is likely the most emotional of all legal proceedings. After all, you may be dealing with your children, where they are going to live, what the visitation plan is, and how much support is going to be paid or received. Will the support be enough for them? What about spousal support and debts that have to be divided? And what happens to the family home? What if there has been domestic violence perpetrated against one spouse?

One area where emotions need to be in check is in child support and spousal support. This is especially true in today’s economic troubles, wherein one party may lose a job or may not be working. Typically, the paying spouse wants income imputed to the other spouse, who may have been laid off or has not worked in some time, so that the support they are paying is not too high. The problem is that the paying spouse lets their emotions control the case. They simply try to tell the judge the non-working spouse can find a job or that they have worked for “Such & Such Company” in the past, making $XXX amount of money per month, and, therefore, they should have imputed that income.

In a court of law, cases are decided based on whether the burden of proof has been met. This is also true for family law cases. If a spouse seeks to impute income to the unemployed/underemployed other spouse, a burden of proof must be met. In a recent case, Marriage of Bardzik, the court indicated that the father presented no evidence of the mother’s vocational abilities or opportunities to earn income, and merely pointing to her previous income was insufficient to meet his burden of proof; thus, the court denied his request that she be imputed income.

If you have a family law issue, make sure you leave your emotions out of the case and are clear regarding what you need to prove, then go out and get the evidence to support your position.

What Is Imputed Income in Divorce?

Imputed income is the income a court assigns to a spouse during divorce or support proceedings, regardless of whether that spouse is actually earning it. The concept prevents one party from avoiding financial responsibility by remaining unemployed or underemployed.

Under California Family Code §4058, income can include not only wages actually earned but also income a parent has the ability and opportunity to earn. Judges carefully examine evidence before imputing income, since doing so affects both child support and spousal support orders.

How Courts Decide to Impute Income

Courts do not impute income lightly. Judges balance fairness with the statutory goal of ensuring children and dependent spouses are supported. To determine whether to impute income, courts often consider:

• The spouse’s education, training, licenses, and prior employment history.
• The local labor market and the availability of comparable employment.
• The spouse’s good faith efforts to secure employment.
• The presence of physical or mental health issues that prevent work.

California courts frequently rely on vocational experts to provide testimony about the spouse’s ability to work and available employment opportunities.

Imputed Income in Child Support Cases

Child support in California is calculated using a formula under the statewide child support guidelines. Imputed income may be used when:

• A parent quits a job to avoid paying support.
• A parent deliberately works fewer hours.
• A parent chooses to remain unemployed despite being able to work.

The goal is to ensure that children are not deprived of financial resources simply because one parent chooses not to work. Courts will, however, take into account situations where unemployment is involuntary, such as layoffs or economic downturns.

Imputed Income in Spousal Support Cases

For spousal support (alimony), courts use California Family Code §4320, which lists multiple factors judges must consider, including earning capacity, contributions to the marriage, and length of the marriage. Imputed income is relevant when:

• One spouse is capable of self-support but chooses not to work.
• The supported spouse can retrain or pursue work, but avoids it.
• Courts want to encourage financial independence rather than long-term dependency.

Judges may impute income to reduce or even eliminate spousal support if evidence shows the supported spouse could reasonably earn income.

Burden of Proof and Evidentiary Standards

The burden of proof is always on the spouse seeking to impute income. Judges require more than assumptions. Evidence must demonstrate:

• The other spouse’s ability to earn (based on qualifications and skills).
• The opportunity to earn (availability of jobs in the local market).
• A willful decision to remain unemployed or underemployed.

Cases like Marriage of Regnery and Marriage of Hinman confirm that courts look for concrete vocational evidence, not speculation. Without this, as in Marriage of Bardzik, imputation requests fail.

Modifying Support Orders and Imputed Income

Imputed income is not permanent. Support orders can be modified if circumstances change. Examples include:

• A spouse developing a medical condition that prevents work.
• Loss of employment due to factors outside their control.
• Substantial changes in income for either party.

To modify an order, a party must file a Request for Order with the court, provide financial disclosures, and present updated evidence.

Enforcement of Imputed Income Orders

When courts impute income and set support obligations, failure to pay may result in enforcement actions such as:

• Wage garnishments.
• Suspension of driver’s or professional licenses.
• Contempt proceedings.

Courts have broad powers to enforce support orders, and avoiding payment can lead to serious financial and legal consequences.

Domestic Violence and Special Considerations

Domestic violence adds another layer to support determinations. California law prioritizes the safety and stability of survivors. Courts may decline to impute income to a victim if employment would jeopardize safety, mental health, or the best interests of children. Protective orders and custody arrangements often intersect with support cases, requiring careful legal handling.

Tax Implications of Imputed Income

Since the Tax Cuts and Jobs Act (TCJA), spousal support payments are no longer deductible by the paying spouse nor taxable to the receiving spouse (for divorces finalized after 2018). However, the amount of support set by the court, including when based on imputed income, still directly affects each party’s financial situation.

Practical Guidance for Spouses

If you want income imputed to your spouse:

• Gather vocational evaluations, résumés, job postings, and expert reports.
• Present evidence of previous earnings and demonstrate current opportunities.
• File the appropriate legal motions with clear supporting documentation.

If you are defending against an imputation request:

• Provide medical documentation if you are unable to work.
• Show records of your job search efforts or retraining.
• Present evidence of caregiving responsibilities that prevent full-time work.

FAQs About Imputed Income in Divorce

Can income be imputed if my spouse works part-time?

Yes. Courts may impute income if they believe the spouse could work full-time and is underemployed by choice.

Does imputed income apply if my ex is self-employed?

It can. Courts may examine prior business income, market conditions, and the spouse’s ability to generate revenue.

Can income be imputed during temporary support hearings?

Yes, but courts may be more flexible in temporary orders compared to permanent ones, especially if a spouse is transitioning back into the workforce.

What if my spouse is in school or retraining?

Courts may consider education as a valid reason not to impute income, especially if it leads to long-term self-sufficiency.

How does remarriage affect imputed income?

Remarriage itself does not stop imputation, but financial changes from a new household may affect spousal support calculations.

Can the court impute income if the job market is poor?

Courts consider economic conditions. If unemployment is high or jobs are scarce, imputation is less likely unless strong evidence shows opportunities exist.

Get Legal Help From Reape Rickett

Issues involving child support, spousal support, and imputed income are legally complex and emotionally challenging. Understanding the burden of proof, the evidence required, and the procedural steps is critical to protecting your financial future.

At Reape Rickett, our family law attorneys have decades of experience handling divorce, support, and modification cases across California. We provide strategic guidance, gather and present strong evidence, and represent your interests in negotiations and court.

Visit Reape Rickett today to schedule a consultation and receive the legal help you need for your family law matter.