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Willful Unemployment or Underemployment

Willful Unemployment or Underemployment

In determining a Georgia child support obligation, the first item to be determined is the gross incomes of both parents. In considering the evidence for gross income, the court will determine whether either parent is willfully unemployed or underemployed – meaning, whether either parent could reasonably be earning more money to contribute to child support. In making this determination, the court “shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child.” O.C.G.A. § 19-6-15(f)(4)(D). A determination of willful or voluntary unemployment or underemployment “can be based on any intentional choice or act that affects a parent’s income,” not solely a parent’s intent to avoid or reduce child support payments. Id.

In making this determination, “the court may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills or training to produce income.” Id. Georgia law lists several factors for the court to consider:

  1. The parent’s past and present employment
  2. The parent’s education and training
  3. Whether unemployment or underemployment for the purpose of additional schooling or training is reasonable
  4. A parent’s ownership of valuable assets and resources that appear inappropriate in light of the income claimed
  5. The parent’s health and ability to work outside the home
  6. The parent’s role as caretaker of a child of that parent, a disabled or seriously ill child or adult child, or any other relative, which eliminates or substantially reduces the ability of that parent to work outside the home

O.C.G.A. § 19-6-15(f)(4)(D)(i-vi).

 Example of Voluntary Underemployment

Consider the example of a parent who has a graduate degree and previously worked as CEO of a large corporation who has chosen to have a less stressful job working at a fast food restaurant. In applying the factors above, a Georgia court would likely conclude that this parent was voluntarily underemployed. Regardless of whether the intent was to reduce his/her child support obligation,the Court will likely require the parent to attempt to a job in line with his/her past employment and training.