BoomerGirl Diary

Q: When my husband and I divorced eight years ago, he had a good job with state government, which he kept until he decided last year to go back to school to pursue a master's degree in counseling. When he voluntarily left his job, he was earning more than $53,000 annually, had retirement, and great health insurance for himself and our two children, now ages 17 and 11.

Now, as a student, he receives a monthly stipend of just over $1,000 and has no health insurance, which I have had to pick up at my employment at a much greater cost. He withdrew his retirement – more than 16 years' worth – to pay for his schooling. I did not get alimony, and he is asking me to reduce child support until he gets employed again in a year or two.

This could not have come at a worse time. Our daughter is scheduled to go to college this fall, and my income fluctuates and has gone down over the past six months. I have remarried, and have a young child with my current husband who, while employed, pays child support to his ex-wife and can't pick up the slack.

I agreed to give my ex a small reduction to try to resolve the problem because I feel that he put himself in a poor economic situation right before our daughter will be ready to go to college. Now he has hired a lawyer. Before I spend a lot of money with lawyers, I want to know if you think I have a chance, or if he will get what he wants.

A: While it's impossible for us or anyone to predict how a judge will view the facts of your case, we believe that if the judge finds that your husband is "underemployed", the judge can impute to him the amount of income he could be earning had he not made the decision to terminate his employment and go back to school.

Wanting to improve educationally must be admired, but where, as here, a parent voluntarily reduces income and earning capacity while having an obligation to support children, the court can establish child support based upon what that parent could be earning. In making this decision, the court will generally look to your former husband's work history, job qualifications, and employment opportunities and salary levels in your community.

At the same time, the court will look at your income over a reasonable length of time to determine the average, not just the past six months.

Should the court choose to deviate from the child support guidelines adopted by your state in establishing support, the deviation must be accompanied by written factual findings which detail the judge's rationale.

Bottom Line: We believe that your former spouse chose a poor time to leave a well-paying job, especially since your daughter will be going to college next year with all the attendant expenses -- which could become your next battleground.

Litigation over child support while attending school full-time when finances are low is not a good idea. We believe that had your ex sought legal advice before he stopped working, he could have learned that this type of situation would probably develop, and could have explored other educational options short of terminating his employment – such as taking night classes, distance education, summer classes, and participating in other part-time educational pursuits.