Q. My soon-to-be-ex wife was a high school math teacher before we had children. By agreement she stayed home when our twins were born. She was going to return to teaching when they started school. Instead, she started volunteering for a non-profit and became employed as their bookkeeper. Our kids are now seven and we are divorcing. We agreed to an equal parenting plan so I had to cut back on the overtime I used to work so I can actually parent our boys during my time.
My wife continues to do the books for this non-profit for about 30 hours per week for just above minimum wage. She used to teach in a wealthy town earning triple what she currently earns. She refuses to return to the classroom. I recently learned whenever I have our kids, she is in Rhode Island with her new boyfriend working remotely. I suspect this is why she refuses to discuss going back to teaching.
My lawyer says I cannot ask the court to order her to return to teaching. But, unless she earns more, I will have to sacrifice my parenting time for overtime hours to pay support. Do I have any other option?
A. If the historical earnings are significantly higher as you say and the underlying reason for remaining underemployed seems to be a lifestyle choice, you can ask a judge to attribute an income to your wife. You will need to hire a vocational expert. Generally, this is a person who has an understanding of the job market in your wife’s profession and can testify at an evidentiary hearing before the judge.
If you go this route, your lawyer can help you identify and hire an appropriately credentialed expert. Your wife does not need to agree to cooperate. You will need your wife’s resume and tax returns or W-2 showing her income the last time she was employed as a teacher. You will need to answer questions about your wife’s health, your children’s health, and any limitations which would prevent her from returning to her prior career.
Assuming the expert opines that your wife can return to teaching at her prior level and earning rate, ask the judge to hold an evidentiary hearing on your motion to attribute income to your wife. When a judge attributes an income to someone, the support calculation is based on the income they can earn rather than what they do earn.
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