When a child support obligor is unemployed or underemployed, the courts may use the imputation of income as an effective method of determining the appropriate support obligation. Before the court can impute income to the unemployed obligor, however, it must find that at least one of the requisite conditions exist specifically: (1) the obligor is voluntarily unemployed; (2) he/she is attempting to evade a support obligation; or (3) he/she has unreasonably failed to take advantage of employment opportunity. The critical consideration in determining if an employment change was made in good faith is whether the change was prompted by a desire to evade support responsibilities.
A non-custodial parent has a duty to contribute to the support of their child and therefore cannot become voluntarily unemployed. InIn re Marriage of Adams, 348 Ill.App.3d 340, 809 N.E.2d 246 (3rd Dist. 2004), support obligor quit his job and moved to Germany without first obtaining employment. The court imputed income to the obligor based on findings that he was voluntarily unemployed and his prior income reflected his earning potential.
The court will also require that an obligor take advantage of any reasonable employment opportunities. In In re Marriage of Hubbs 363 Ill.App.3d 696, 843 N.E.2d 478 (5th Dist. 2006), the appellate court upheld a support award based on imputed income because of the obligor’s rejection of a job opportunity which would have paid him a salary commensurate with that earned during the marriage.
When imputing income, the court may consider averaging past earnings for purposes of making a support award. In In re Marriage of Nelson 297 Ill.App.3d 651,655, 698 N.E.2d 1084 (3rd Dist. 1998), the court used an average income of the obligor’s prior three years of employment to determine net income.
The use of income information dating back too many years, however, may be an abuse of discretion. In In re Marriage of Schroeder215 Ill.App.3d 156, 161, 574 N.E.2d 834 (4th Dist. 1991), the court held that data six years old did not reflect the current circumstances of the parties which would enable the court to comport with (or deviate from) the child support guidelines.