Failed Legislative Effort to Presume Minimum Income for Child Support Purposes

by | Jun 28, 2017

The 2017 Maryland legislative session saw a failed effort to impose a rebuttable presumption that a parent is able to work 40 hours per week at minimum wage for child support purposes when a parent is found voluntarily impoverished.

Specifically, HB1248 would have added the rebuttable presumption to Family Law Article §12-204(b), which addresses voluntary impoverishment of a parent. When a parent is determined voluntarily impoverished, the court may determine child support based upon the parent’s potential income.

Voluntary impoverishment was defined by Maryland’s Court of Special Appeals in Goldberger v. Goldberger, 96 Md. App. 313 (1993) to mean:

“…for purposes of the child support guidelines, 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. To determine whether a parent has freely been made poor or deprived of resources the trial court should look to the factors…

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.”

“Potential income” is defined in Maryland Family Law Article §12-201(l) as: “income attributed to a parent determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.”

A rebuttable presumption is an assumption the court must apply unless proven otherwise.

For reasons unclear from the Maryland General Assembly’s website, the bill shows both as having received an unfavorable House Judiciary Committee report and being withdrawn, with the withdrawal noted on the Committee report voting sheet (with no vote reflected). Regardless, the bill was withdrawn and did not progress beyond a hearing.

Interestingly, the rebuttable presumption of full-time employment at minimum wage would have applied in the event of a determination of voluntary impoverishment and not generally as a minimum amount of required income, regardless of voluntary impoverishment. The sponsor’s testimony at the House Judiciary Committee hearing suggested that the presumption would apply, for example, when parents were paid in cash and it was therefore difficult to prove income. Difficulty proving income is different from voluntary impoverishment. A generalized rebuttable presumption would address the former; adding voluntary impoverishment to the mix might not.

We shall see if the 2018 session will see a different iteration of this bill.

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. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.