In a nation with 50-year record low unemployment1, the idea of choosing to be unemployed seems … odd. Whether underemployed or unemployed by choice, the spouse who connives to get by with less may be buying herself a world of misery. If she tries this strategy attempting to get more spousal support, let her know you have her number.

She’s Too Clever By Half

Say you and your spouse divorce and you agree to provide spousal support. She gets the brilliant idea to milk you for more milk money by deliberately quitting a good-paying job, then claiming she needs more spousal support because she is sooo poor.

This is the classic example of an ex-wife being too clever by half. Unfamiliar with that expression? Well, see if its definition fits your ex-wife:

She thinks she can trick you into increasing spousal support by claiming to be impoverished due to her unemployment. She is wrong, of course, but getting her to realize this may be a job more suited for your divorce attorney than yourself.

She is not the first (nor will be the last) to think she has cleverly gamed the system. She is also not the first to run smack into the weighty tome that is the Code of Virginia.

Imputed Income

Buried deep within the obscure mysteries of Virginia’s legal code is Title 20, Chapter 6, which includes this little section on “imputed income:”

…any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential…

See that little phrase, “good faith and reasonableness of employment decisions …?” That is your response to her claim that she is unable to work or cannot find work. Well, it is your attorney’s response to her when you ask the court to deny her petition for a change in spousal support.

Determination of Child or Spousal Support

Virginia’s Code of laws intermingles child support and spousal support, making interpretation a bit challenging for the casual reader.

For example, Code of Virginia § 20-108.1 (B)(3) spells out voluntary unemployment as a rebuttal to the presumption that child or spousal support amounts are correct, without specifying spousal support in the pertinent clause:

The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child: … 3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed … 

No matter. Your divorce attorney is fully aware that the law applies to both forms of financial assistance. In simpler words, your wife cannot choose to be unemployed or underemployed as a way to try to extort more support from you.

Voluntary Underemployment & Unemployment

Your wife is not going to admit in open court that she deliberately left a job with the sole intent of squeezing you for more money. Your divorce attorney will instead find a way to demonstrate to the judge’s satisfaction that she is:

  • Voluntarily underemployed or unemployed
  • Shortsighted and misinformed
  • A conniving weasel Able to pursue a vocation

We apologize for offending any weasels among our readers; it was not our intent. Anyway, the same law that allows for imputed income also allows for your ex-wife’s vocational abilities to be tested by an expert:

In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. 

When your ex-wife claims she simply cannot find a job, your divorce attorney can invoke § 20-108.1(H) and ask the judge to order your ex-wife to submit to a vocational evaluation. When faced with this prospect, a conniving weasel the opposing party realizes she must stand on her own two feet.

For all your concerns and worries about divorce, please turn to The Firm For Men. Contact us online or telephone our offices at 757-383-9184. We would be happy to meet with you to discuss your Virginia family law case.

1. https://data.bls.gov/pdq/SurveyOutputServlet