Wife files for divorce. Husband (payor) had lost his job. He said that he was trying to start his own company. He could earn $40,000 per year. He wanted the court to set child support on that income. This was much less than the $210,000 he had been earning. Husband had been involuntarily terminated from his position.

The court said that he cannot use self-imposed poverty. He has the means to earn more income. The court can impute income. The court can hold him to a higher earning level.

In determining a parent’s earning capacity, for purposes of setting child support, the court should examine a few factors: (1) the work and earnings history of the parent. (2) the parent’s educational background. (3) the parent’s occupational qualifications. (4) prevailing job opportunities in the geographic area.

In imputing income for purposes of child support, the trial court may rely on the testimony of vocational experts. What amount of income can the payor reasonably be expected to earn based on education and experience?

The husband was liquidating his retirement income. He was spending $17,500 per month on himself. But, he said that he could not afford to pay much for child support. The court based his income on $17,500 times 12 months for the year. Husband appealed.

If a parent is not making a good-faith effort to earn sufficient income, the court may set a child support obligation at a level higher than the parent’s actual income, as long as the award is appropriate based on the parent’s skills and experience.

The Appellate Court reversed. Evidence that the obligor once earned a certain salary is not enough. Evidence that he could perhaps earn it again is not enough.

There was no evidence that a job with the same salary was available to the Husband. There was no evidence that the Husband could earn that amount at another job based on his qualifications.

In Re the Marriage of Liszka, 2016 IL App (3d) 150238.

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