Underemployment Means That if You Are Capable of Holding a Job at a Particular Level

Video Transcribed: You put her through it school for four years to get that degree, and now she’s working at Walmart.  My name is Brian L. Jackson. I’m a Men’s Child Custody
Lawyer in Tulsa Ok with dads.law.

I want to talk about underemployment. What is underemployment? Well, under the statutory and case law that governs child support and support alimony and other need-based benefits that can be extended in divorce proceedings and separation proceedings, and child custody proceedings, underemployment basically means that if you are capable of holding a job at a particular level, either due to work experience or education or some combination thereof and instead you choose to take a low paying job that does not pay what you could be potentially earning, that could be considered underemployment.

If you’re dealing with a situation where your ex is crying poor mouth because, well, I only earned $7.00 an hour, but you know she’s been to school. You know she has the capability to do something that pays better, and she’s just not doing it. And by the way, this cuts both ways, because this can be you guys too.

Then the argument can be made basically that this person is willfully underemployed to try to game the system. And the result is the court can impute them. That is, the court could find them to have a higher income than what they’re actually earning based on what they potentially could earn.

How do you get at that? Well, first of all, you want to be able to prove that the person does in fact have a higher level of education than what their job requires and that education opens up doors to them that they wouldn’t … better than what they’re doing.

Well, I should say the higher level of education, the higher level of experience, and then it opens doors to them. And then the other thing you want to be able to establish is whatever that career path is, that it pays better than what they’re doing now.

And you can establish that by looking at average job statistics. You might need an expert if it’s something specialized. You may be able to get, bring in government statistics to show what the average is for your area, and basically prove that they’re not earning what they could earn.

That’s how you do that. And there are some other things that can be relevant to that, like how long you’ve lived in the area. And do they have any disabilities that would prevent them from working up to snuff? Is there any excuse they might raise?

And then when I say, excuse, I don’t mean, “Oh, I have to take care of the kids,” kind of excuses, because you can address that. I’m talking about they’ve been injured on the job. They’re not capable of doing the work for some other reason, things like that. And typically it would have to be some reason that’s outside of their control.

I mean, I would certainly say that if you’re dealing with somebody who is, for example, a disbarred lawyer or a physician who lost their medical license. I don’t think it’s unreasonable in that situation to go into court and argue, they should be imputed at the higher amount for the simple reason that if they’ve got disbarred or they lost their medical license, it was through some kind of wrongdoing on their part that they should not then benefit from. However, it is an equitable consideration and it is going to ultimately be up to the court to decide what to do with that.

But if you know your ex is not working up to their potential and they’re sitting there crying poor mouth, this is something you definitely want to have your lawyer bring to the court’s attention. If you need help with a situation like that, go to dads.law, where we will fight for your father’s rights in Tulsa.