When a parent or spouse is determined voluntarily impoverished, the court may determine child support or alimony based upon the parent’s or spouse’s potential income and earning capacity.
In Child Support Cases:
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.”
In Alimony Cases:
“Although alimony is a separate issue from child support, it similarly requires the court to consider “the ability of the party seeking alimony to be wholly or partly self-supporting” and “the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment,” FL § 11-106(b)(1), (b)(2). Most, if not all, of the voluntary impoverishment factors will be relevant to alimony under FL § 11-106(b)(1) and (b)(2), and so a finding of voluntary impoverishment would ordinarily entail a finding, for purposes of alimony, that the impoverished party could support him or herself, but chooses not to.” Reynolds v. Reynolds, 216 Md.App. 205 (2014).
“Potential income” is not statutorily defined for alimony purposes. Nonetheless if the court finds that a spouse is voluntarily impoverished for alimony purposes, the court will then determine what the spouse’s potential income is. The court then imputes the spouse with potential income (so, treats the spouse as if s/he is actually earning the potential income).
In an alimony case, voluntary impoverishment and imputed income may apply to the spouse requesting alimony or to the spouse requested to pay alimony.
When a court decides that a spouse or parent is voluntarily impoverished, the court must have sufficient evidence of earning capacity to impute an appropriate amount of potential income. That evidence may consist of earning history and/or expert witness testimony from a vocational rehabilitation expert who has evaluated the spouse’s/parent’s earning capacity. The court will then decide the spouse’s or parent’s potential income.
A spouse’s or parent’s potential income will then be used to calculate child support or alimony.
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 In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.