Question: When my wife and I divorced ten years ago, she had a very good job with state government which she kept until she decided to go back to school to pursue a master’s degree last year. She was earning more than $37,000 per year, had retirement, and great health insurance for herself and our daughter.

Now, as a student, she receives a monthly stipend of just over $1,000, has to pay for her and our child’s health coverage, and has withdrawn her retirement. She is asking for more child support (I pay no alimony) until she gets on her feet again in two years, and tells me that her earning capacity will be one and a half times what it had been. Our daughter is now 17 and will be going off to school next year. I am in a profession where my income fluctuates each month and has gone down over the past six months. I have remarried, and have a young child with my current wife who is not employed. I agreed to give her a small increase to try to resolve the problem because I feel that she put herself in a poor economic situation right before our daughter will be ready to go to college. She has hired a lawyer. Before I spend a lot of money with lawyers, I wanted to know your ideas about whether I have a chance or if she will get what she wants.

Answer: While it is impossible for us or anyone to predict how a judge will view the facts of your case and decide the issues, we believe that if the judge finds that your wife is “underemployed”, he or she can impute to your wife the amount of income she could be earning had she not made the decision to terminate her employment and go back to school.

While wanting to improve one’s self educationally must be admired, where, as here, a parent voluntarily reduces income and earning capacity despite having an obligation to support a child, 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 wife’s work history, job qualifications, and employment opportunities and salary levels in your community.

On the other hand, in deciding your income for child support purposes, the court will look at your income over a reasonable length of time to determine the average, not just the past six months. In other words, even though your current income may be less than it was last year, the court will probably assess support under your state’s child support guidelines based on a two or three year average.

If the court chooses to deviate from the child support guidelines 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 wife chose a poor time to leave a well-paying job, especially in light of your daughter’s matriculation into college next year and the attendant expenses, which could become you 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 wife sought legal advice before she stopped working, she could have learned that this type of situation would probably develop, and could have explored other educational options short of terminating her employment – such as taking night classes, summer classes, and participating in other part-time educational pursuits as do many school teachers each year.