A Georgia court can set child support on what a parent could earn rather than what the parent does earn, but only after finding the parent willfully or voluntarily unemployed or underemployed.
What the Statute Says
Under OCGA 19-6-15(f)(4)(D), the court “shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child.” The finding is not limited to choices “motivated only by an intent to avoid or reduce the payment of child support” but “can be based on any intentional choice or act that affects a parent’s income.” The factors include past and present employment, education and training, health, any caretaker role, and assets “that appear inappropriate or unreasonable for the income claimed.” If the finding is made, “child support shall be calculated based on a determination of earning capacity.”
Earning Less Than You Could Is Not Enough
In Bankston v. Lachman, 286 Ga. 459 (2010), the Georgia Supreme Court held that “the mere fact that earning potential exceeds actual earnings, is not enough to impute income.” In Marlowe v. Marlowe, 297 Ga. 116 (2015), a father passed up law enforcement work for a steady job with regular hours; he was not underemployed, because “[p]ast income, alone, is not conclusive evidence of earning capacity.”
What Does Count
In Galvin v. Galvin, 288 Ga. 125 (2010), a father lost his job involuntarily, but “prolonged unemployment and a dearth of evidence of the parent’s efforts to obtain employment” supported imputing income to him. In Spirnak v. Meadows, 355 Ga. App. 857 (2020), a father with 15 years of sales and marketing experience worked part time in seasonal tree work, applied for eight jobs online in three months, and kept his gym membership and vacations; he was voluntarily underemployed. How the number is then set is covered in our post on imputing income.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!