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Welcome to Divorce At Altittude,

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a podcast on Colorado family law.

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I'm Ryan Kalamaya. Each week,

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along with my business partner and co-host,

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Amy Goscha, or an expert, we

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discuss a particular topic related

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to Divorce or co-parenting in Colorado.

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In addition, we have created

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a short series of lessons that

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will take you through the legal process

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of Divorce and answer your questions

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from simple to complex. Divorce

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isn't easy. The end of a marriage,

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especially when children are involved, brings

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a great deal of loss and change.

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We hope these practical tips and insights

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will help you on your journey to a new.

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And better life.

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This is a how to episode on

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voluntary unemployment, underemployment,

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and imputed income.

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Now, these issues come up when

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we are discussing either spousal

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support and or child

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support. So let me give you an example

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of what we are really

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discussing and then we'll dig into the various

1:04

concepts and break it down in

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terms of how the law applies these

1:09

concepts in alimony as

1:12

well as child support. So let's

1:14

say that we have Eric and Melanie Wolfe, our

1:16

hypothetical divorce clients and

1:18

we're discussing alimony. And as

1:20

listeners and or viewers would recall,

1:23

we really are going to look at some of the

1:25

income of the parties.

1:28

Let's say that Melanie. has been

1:30

a stay at home mom and

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they have a five year old. What

1:34

happens when Eric says Melanie

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is capable of earning income.

1:39

She earned a substantial

1:41

income before our child was

1:44

born and the child is now at kindergarten,

1:46

so she can work while the child

1:48

is at school. Or in another circumstance,

1:51

let's say that Melanie

1:54

is, working part time and she

1:57

is earning substantially less

1:59

than what her degree or her

2:01

previous employment would suggest.

2:04

Or another example is Eric just

2:06

quits his job. He gets a bad case of

2:08

what I call divorce flu. And

2:10

he says, listen, I'm not gonna Earn

2:13

substantial income and have Melanie

2:15

sharing that. So I'm just going to quit my job

2:17

or I'm going to go become a raft guide.

2:20

When I was a lawyer and no

2:22

offense to raft guides, they don't make as much money

2:24

generally speaking as lawyers.

2:26

What happens in those circumstances?

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The court is going to impute

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or apply potential income

2:34

for Eric or Melanie in either of those

2:36

circumstances. And the concept

2:38

is called voluntary unemployment.

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So if someone is deciding not

2:43

to work or they are underemployed,

2:46

they're working and they're making less

2:48

than what what they could. In the circumstance

2:51

of alimony, we do have these

2:53

general guidelines and provisions for

2:56

what happens in that circumstance. And the law

2:58

says if a party is voluntary unemployed

3:01

or underemployed, maintenance

3:03

should be calculated based on a determination

3:06

of the potential income of that

3:08

party. And as listeners will recall,

3:10

There is this formula. So the concept

3:13

and if you get into the net

3:15

spendable income or rather the

3:17

reasonable needs of Melanie, if she's

3:19

claiming maintenance, then, and she

3:21

says my spend is I need 10,

3:24

000 a month. Her potential income.

3:27

Would reduce that gap. Now

3:29

there are circumstances in which let's

3:31

say Melanie is the party that we're looking

3:34

at as the voluntarily

3:37

unemployed or underemployed party.

3:40

In what circumstances is there, an

3:42

exception to imputing the

3:45

law does provide that that Melanie

3:47

will not be deemed underemployed

3:50

if the employment is temporary

3:53

and is reasonably intended to result in

3:55

higher income within the foreseeable future.

3:57

If she's in a training program if

4:00

she's doing some sort of apprenticeship or.

4:02

There's some sort of program that she

4:04

is doing and we'll talk more about that

4:06

in another circumstance, but really,

4:09

if she's learning and the idea

4:11

is that she's going to result or it's going

4:13

to result in higher income, then, for the

4:15

time being whatever she's making at

4:17

that particular time is what it is.

4:20

Okay. The other circumstance is

4:22

if someone is taking care,

4:24

if Melanie is taking care of a child

4:27

less than 30 months, so

4:29

a newborn the law does provide

4:31

that newborns. Or children,

4:33

toddlers up to the age of 30 months.

4:35

Now, remember that because I will, as we get

4:38

into the child support threshold

4:40

or age is actually different. It's 24

4:42

months. And it's an unusual kind of

4:44

a little wrinkle in the differences between

4:46

maintenance and child support. And it could

4:48

be an oversight by the legislature. In

4:50

any event the law for maintenance

4:53

says 30 months. for your time. And

4:55

then also if a party or

4:57

parent is incarcerated for

5:00

a year or more in that circumstance, we're not going

5:02

to impute income to Melanie

5:04

if she is in jail or is in

5:06

prison, the other circumstance

5:09

or exception is if the employment

5:11

is a good faith career. choice. So

5:13

this gets into kind of the history. If Melanie

5:16

has been a high flying executive

5:18

in, has switched into the

5:20

non profit world and has been

5:23

in that world for a decade

5:25

or the last two years or three years

5:27

before the marriage or I'm sorry, before

5:29

the divorce rather then that would be

5:32

a good faith choice. Career choice. If Melanie

5:34

had some health issues or

5:36

the parties had decided between, between themselves

5:39

or Melanie just said, listen, this is what I

5:41

want to do and there had been

5:43

some sort of history of her working

5:45

in the nonprofit, that's going to be

5:47

different than all of a sudden during

5:49

the divorce Melanie just quits her job.

5:52

And pursues a career in

5:54

the nonprofit world. And that just came out of nowhere.

5:57

The final exception to this concept

6:00

of, imputed pay is

6:02

if a party is enrolled in an

6:05

educational program that is reasonably

6:07

intended to result in a degree

6:09

or certificate within a reasonable period

6:11

of time, there is, will result

6:13

in a higher income so long as

6:16

the educational program is a good faith

6:18

career choice. So If

6:20

Melanie goes back to culinary school and

6:23

her her idea is that she wants to become

6:25

a private chef and, or cater

6:27

and that's going to result in, more income

6:30

than she was before that might be acceptable.

6:32

If she, is a lawyer

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but then decides that she wants to quit being a lawyer

6:37

and wants to go back and study

6:39

Buddhism or philosophy or

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some other career. Her suit that might

6:43

be valuable or that might

6:45

be something of interest to her that she's

6:47

always been interested in Buddhism

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the court is going to really look at and

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say, is this intended to

6:55

result in more income

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or is it just that you're just avoiding and trying

6:59

to fit within this exception

7:01

and not work? These are the concepts

7:04

that are a play for maintenance. Let's

7:06

turn and talk about child support.

7:08

We haven't really talked about child support in

7:11

other episodes, but this concept

7:13

does come up in child

7:15

support as well. And there's a little bit

7:18

more meat to it. To the law when

7:20

it comes to guidance on how do

7:22

we figure out because I haven't

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gotten into what is the potential

7:26

income that is going to be

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imputed or used for Melanie

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or any sort of party that is underemployed.

7:35

As I intimated before the exceptions

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are generally similar between alimony

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and child support in terms of the

7:43

the employment is temporary or reasonably intended

7:46

to result in higher income there's a good

7:48

faith career change or

7:50

someone is involved in or enrolled

7:52

in a part time or rather a full

7:54

time educational vocational

7:56

training. Program. Those are still

7:58

the same. We do have the

8:00

difference, as I said before, in taking

8:03

care of a young child. In

8:05

child support, there is no voluntary

8:07

underemployment up to 24

8:10

months. And so two years old

8:12

you Melanie can stay at home and

8:14

there's not going to be any income that is

8:16

going to affect her. be imputed to

8:19

her. She gets a little bit longer under the

8:21

alimony, and I will say that the court

8:23

can use its discretion in

8:25

applying these and, could find

8:28

in certain circumstances in which a

8:30

parent may not be voluntary

8:33

underemployed if, for example,

8:35

a child is 26 months and,

8:37

it really is going to depend, but that is what

8:39

the law says and it, listeners

8:42

should do. Understand that difference.

8:44

As I said before, there is going to be a little bit

8:46

more definition in

8:49

the child support law, and

8:51

it's also I will, let listeners

8:53

know this is a circumstance in which

8:55

lawyers or parties could argue

8:58

or present to the court

9:00

or use, in response to the

9:03

what should the potential income be.

9:05

The factors for child support that

9:08

may or that don't apply or

9:10

rather aren't listed in the statute on

9:13

maintenance, but it still is providing guidance

9:15

and it makes sense when you hear 'em. So

9:17

the court or the law says that in

9:20

determining potential income that

9:22

the court shall consider to the extent

9:24

known specific circumstances

9:27

of the party, including consideration of

9:29

the following factors. Now,

9:31

this is again, for determining potential

9:33

income. So you're gonna get into the

9:35

parents' assets. Residence,

9:38

Employment and Earnings History, Job

9:41

Skills, Educational Attainment,

9:44

Literacy, Age, Health,

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Criminal Record, Other Employment

9:49

Barriers, Record of Seeking

9:51

Work, the Local Job Work, The local

9:54

job market and the availability

9:56

of employers hiring the community.

9:58

So these factors,

10:00

they make sense. So if you're up in Aspen

10:03

and you work in a particular industry

10:06

that doesn't exist in Aspen and

10:08

you can't work remotely, that might be

10:11

relevant or that is going to be relevant

10:13

for the court in determining The potential

10:16

income, but likewise, we have

10:18

in Aspen where, I currently am recording

10:20

this, we have, a high cost

10:22

of living. And so the entry level positions

10:25

are generally higher than minimum wage.

10:27

And so we're going to really look at, the

10:29

local wages as well

10:31

as the. Market. And

10:34

so you're going to get into the history

10:36

and so one might look at the social security

10:38

earnings of a party. So if Melanie

10:41

worked before taking time off

10:43

or not, working during the marriage, that's

10:45

going to be relevant as opposed to where she

10:48

never worked. And, if Melanie

10:50

is 55 and has

10:52

a 20 year gap in

10:54

working, that's going to be good. Substantially

10:56

different than Melanie at the age of

10:58

30 who had a,

11:01

has a college degree and the

11:03

part, took some time off for young children

11:05

and now they have a 3 year

11:08

old. Those circumstances are going to really

11:10

change. And so you get into

11:13

potential expert witnesses, we

11:15

sometimes will hire vocational rehabilitation

11:17

experts or vocational

11:20

evaluators, and their job is to

11:22

look at what the prevailing

11:24

wages are in a particular industry. The

11:26

options, they're available for a party

11:29

like Melanie, and we'll say that

11:31

based on the U. S. Department

11:33

of Labor Bureau of Statistics,

11:35

and the court can, under the law,

11:38

take into consideration, and you can

11:40

go to the website of the U. S.

11:42

Department of Bureau of Labor And

11:44

you can look at, how much does a real

11:47

estate broker make or how much does a software

11:49

executive and so on and so forth, they have,

11:52

reams of data and these experts

11:54

will interview Melanie, look at

11:56

what her earnings history is and,

11:58

opine about how much she could potentially

12:01

earn. Those are the circumstances. The last

12:03

thing I will say is that there can be. Special

12:07

unique circumstances such as, a

12:09

child that has special needs

12:11

that a parent needs to take care of,

12:13

there is, law suggesting that

12:15

Melanie may not be imputed

12:17

or required to work full time and likewise

12:19

for Eric if he's staying at home

12:22

and there could be other circumstances taking

12:24

care of elderly parents or

12:26

there might be, some sort of mental or physical

12:28

handicap. Good for one

12:31

of the parties. All of those things are going

12:33

to come into play. The

12:35

concept in wrapping this up is

12:38

voluntary unemployment and underemployment

12:40

is one of the most disputed

12:43

and frequently challenging

12:46

issues that come up in

12:48

a circumstance of a divorce between

12:51

Eric and Melanie Wolfe in

12:53

Colorado. Hopefully that gives you a high

12:55

level indication

12:58

or overview of the issue.

13:00

And these are the sorts of things

13:02

that lawyers will deal

13:04

with often in a call or a divorce.

13:06

Until next time, thank you for joining us on

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Divorce at Altitude.