DID YOU KNOW BY ATTORNEY F.M. ZAVALA

EARNING CAPACITY IN FAMILY COURT FOR CHILD AND SPOUSAL SUPPORT

Earning capacity has been defined by the California Supreme Court as "the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history and the availability of employment opportunities." Marriage of Simpson, (1992) C.4th 225, 14 Cal. Rptr. 2d 411.

In Marriage of Ilas (1993) 12 Cal. App. 4th 1630, 16 Cal.Rptr.2d 345, the Court of Appeal held that a child support award could be based on a supporting spouse's earning capacity even when there is not a deliberate attempt to refuse to maintain or seek gainful employment.

In that case, the Court of Appeal held that a pharmacist, who stopped working to attend medical school, did not have the right "to divest himself of earning ability at the expense of his former wife and two minor children."

Under the statewide uniform guideline, the Court may, in its discretion, consider the earning capacity of a parent in lieu of that parent’s income, if consistent with the best interests of the child. Fam. Code § 4058(b); In re Marriage of Mosley (2008) 165 Cal. App. 4th 1375.