2021 will see 5 major changes to the child support guidelines, one of which concerns statutory updates to existing law on voluntary impoverishment and potential income.
Voluntary impoverishment basically means a parent choosing to be unemployed or underemployed (so, reduced his or her income) in order to avoid paying child support. Starting October 1, 2021 for cases filed on and after that date*, Maryland will see changes to its child support definitions statute (Family Law Article §12-201) to:
- Add “Voluntarily Impoverished”: A parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources. This definition is taken word for word from existing case law, Goldberger v. Goldberger, 96 Md.App. 313 (1993).
- Update “Potential Income”, which is income attributed to a voluntarily impoverished parent based upon their potential and probable earnings level, taking into account an updated series of factors:
- The parent’s:
- Physical and behavioral condition
- Educational attainment
- Special training or skills
- Occupational qualifications and job skills
- Employment and earnings history
- Record of efforts to obtain and retain employment
- Criminal record and other employment barriers
- Employment opportunities in the community where the parents lives, including:
- Status of the job market
- Prevailing earnings levels
- Availability of employers willing to hire the parent
- The parent’s assets
- The parent’s actual income from all sources
- Any other factor bearing on parent’s ability to obtain funds for child support
The new law also sets out a framework in Family Law Article §12-204(b)(2) for requiring the court to make a finding of voluntary impoverishment and consider the factors stated above when determining potential income. Without explicitly requiring it, the statute certainly encourages the Court to state its reasons for the decision and how it considered the factors listed above.
Why did this come about? Because Maryland is legally required to review its child support guidelines every 4 years and to keep up to date with federal law. Per the Low-Income Subcommittee proposing these changes, these promote transparency and stronger focus on realistic consideration of potential income and amount of child support and discourage improper decisions. In fact, research has shown that child support orders for too high an amount in fact result in less child support actually being paid.
What tips should parents and attorneys keep in mind?
- There are exceptions. Don’t forget that Family Law Article §12-204(b) does not allow a court to attribute income to a parent who is either unable to work because of physical or mental disability or is caring for a child under the age of 2 years for whom the parents are jointly and severally responsible (so, a child in common).
- Collect & plan your evidence. The potential income definition provides a detailed roadmap of the factors a court should consider. Which requires evidence. How will you prove a parent’s efforts to obtain and retain employment? Status of the local job market? Prevailing wages? Availability of employers willing to hire the parent? Parent’s assets? Online job listings and the U.S. Bureau of Labor Statistics may be just two starting points. Interrogatories, Requests for Production of Documents, and trial subpoenas, a few of many tools, may be needed to ask about the parent’s efforts.
- Does it call for an expert? Attributing high income potential may justify hiring a vocational rehabilitation expert to research and testify about the local job market, local wages, and willingness of employers to hire. This requires consideration of the expert’s cost and potential benefit.
* Maryland law does not allow legislative changes to the child support guidelines law, themselves alone, to serve a material change in circumstance to justify a modification of child support (Maryland Code, Family Law Article §12-202(b)) or modification of child support to a date before a request is filed with the Court. But Damon v. Robles, 245 Md.App. 233 (2020) provides an interesting and complicated discussion of when these exclusions may not apply. Worth a look if interested in applying October 1, 2021 changes to cases filed or circumstances existing before that date.
For other articles in this series about updates to the child support guidelines law in 2020 and 2021:
- 2020 Updates
- 2021 Updates
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.