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“HELP WANTED” (BUT NOT REALLY): What constitutes “voluntary impoverishment” and what’s that have to do with me?

When two parties divorce (or seek custody of children), often one or both of the parties will seek child support and/or alimony. Sometimes one of the parties has been unemployed (particularly with a stay at home mother) or under-employed. But now, you will have two households, two sets of entirely separate living expenses, and additional costs – based on the salary and incomes you had while living together.

Adding to the already-frustrating multitude of complexities custody or divorce litigation involves, in many cases the unemployed or underemployed party feels indignant that he or she should change his or her lifestyle and now contribute to expenses for the household. Particularly if he or she feels that the other party was the cause of the break up.

You’ve likely seen War of the Roses with Michael Douglas, Kathleen Turner and Danny Devito. Imagine what happens when, on top of the anger and disdain for one another that already exists, the lying, cheating, philandering no good, soon-to-be-ex-spouse, tells you – “Tough luck, you need to get a job!”

Maryland Law is clear. If one parent is capable of earning an income and contributing to the support of the minor child(ren), he or she is required to do so by law under Maryland Ann., Code, F.L. Art. § 5-203(b)(1) (stating that “[t]he parents of a minor child . . . are jointly and severally responsible for the child’s support, care, nurture, welfare, and education”). The Courts have, likewise, upheld this requirement in divorce and custody cases.[1]

For example, a mother who has stayed at home for 10 years raising children may claim that she lacks marketable job skills. However, a word to the wise, “the court may impute income to a party if that party is capable of earning more income than he or she is earning at the time of the divorce.” Brewer v. Brewer, 156 Md. App. 77, 121, 846 A.2d 1 (2004)[2]

In order for the Court to determine whether a party is “voluntarily impoverished,” the Court must find that a party has “reduced his or her level of income to avoid paying support by quitting, retiring or changing jobs.” Goldberger v. Goldberger, 96 Md. App. 313, 326, 624 A.2d 1328, 1330 (1993).

In Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995), the Court of Appeals stated that “voluntary” means that “the action [must] be both an exercise of unconstrained free will and that the act be intentional.” The Court explained the need to examine the intent of the party in Goldberger:

The intent of the parent in those cases is often important in
determining whether there has been voluntary impoverishment.
Was the job changed for the purpose of avoiding the support obligation
and, therefore, voluntary, or was it for reasons beyond the control of the parent, and thus involuntary?”  Thus, a parent is voluntarily
impoverished when they have made the free and conscious choice to
render themselves without adequate resources.

“[A] parent shall be considered voluntarily impoverished whenever the
parent has made the free and conscious choice, not compelled by
factors beyond his or her control
, to render himself or herself
without adequate resources.”

Goldberger v Goldberger, 96 Md. App. 313, 325-27, 624 A.2d 1328, 1330 (1993). [emphasis added].

“Factors beyond his or her control” can be extremely critical to remember, particularly if your reduction in income is based on your company down-sizing, you were laid off, or were even terminated. The Maryland Court of Special Appeals has specifically found that termination from one’s employment does not constitute voluntary impoverishment, when the individual did not intend to lose their job. Stull v. Stull, 144 Md. App. 237, 249, 797 A.2d 809, 815 (2001). In Stull, the appellant was terminated from his job for falsifying documents. Despite the appellant’s obvious misconduct, which was so reprehensible that he was precluded from receiving unemployment benefits, the Court held that the appellant was not “voluntarily impoverished” for a determination of support. The Court reasoned that regardless of whether the appellant may have intended to falsify the documents, the appellant did not intend to be terminated from his employment. Id.

Similarly, in Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 338-9 (1995), the Maryland Court of Appeals held that “misconduct on the part of an employee is not sufficient to deem a subsequent termination of employment voluntary even if the employee’s termination was a foreseeable result of the misconduct.” The Court in Wills was determining whether a father’s incarceration and resulting impoverishment was voluntary because it was the father’s free choice to commit the crime which led to his incarceration. Id. The Court ultimately decided “that the foreseeability of an action’s possible consequences were not sufficient to conclude that the [father] brought those consequences about voluntarily.” Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 339 (1995).

If you hire an attorney who is savvy to the Court’s expectations (and you should), he or she will likely tell you that you need to apply, apply, apply for jobs – regardless of whether you are really looking to obtain employment (hence the title of this blog). Reason being, the Court can determine that the unemployed or underemployed parent is “voluntarily impoverished” if he or she has refused to seek employment or work toward becoming self-sufficient. See Guarino v. Guarino, 112 Md. App. 1, 14-15, 684 A.2d 23 (1996) and Durkee v. Durkee, 144 Md. App. 161, 182-84, 785 A.2d 94 (2002).

At the time of trial, your attorney will likely provide the Court with your resume, applications, and any cover-letters you’ve prepared during the pendency of the hearing. Some attorneys even try to dazzle the Court with the weight of your efforts. “Your Honor, I have 3 inches of job applications that my client has submitted almost daily in her efforts to find employment.”) However, a good trial attorney may cross-examine you on your actual applications and whether the five pounds worth of paper was feigned attempts to obtain employment or legitimate efforts. (Hint – applying for positions well outside your scope of education, knowledge, or prior work experience may not be helpful to you on cross-examination).

Finally, when the Court conducts a hearing and determines that a party is voluntarily impoverished, the Court must make a determine of the factors enunciated in John O. v. Jane O., 90 Md.App. 406, at 422, 601 A.2d 149:

1. his or her current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. the relationship of the parties prior to the divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party.



[2] See also Turner v. Turner, 147 Md. App. 350, 385, 809 A.2d 18 (2002); Crabill v. Crabill, 119 Md. App. 249, 262, 704 A.2d 532 (1998); Colburn v. Colburn, 15 Md. App. 503, 515-16, 292 A.2d 121 (1972).

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