Question: My wife and I have been having problems for years, but things finally exploded and I left home. I am supporting our three children. My wife has promised and promised for years to go back to work after our youngest child went into day care two years ago. She was earning in the high $40’s when she stopped to have our youngest child five years ago. Now she has decided that she wants alimony, too, and that she should be staying home with the children. I feel this is legal extortion. What is my best approach to get her back to work?

Answer: While the final judgment must come from your lawyer based on the law of your state, it would appear to us that your best bet would be to try to convince the judge to “impute” income to your wife based on her voluntarily forgoing lucrative employment that she could have. In order to be successful, you have what is called the “burden of proof”, meaning that you will be required to produce evidence that employment is available and that she ignored it.

If you and she had an agreement that she would return to work after three years but she didn’t, then assuming employment is currently available, we believe that imputation of income would be appropriate. But remember: to prove your case, you must produce evidence that allows the judge to reasonably predict what your wife could be earning.

It is important to remember that when determining child support under child support guidelines, the term “income” is generally defined as either the actual gross income of a parent who is employed to capacity, or the potential income of a parent who is unemployed or underemployed.

Based on evidence of the degree of unemployment or underemployment at present, the court has the authority to establish child support based on the potential income that a fully employed parent would have available. Based on evidence you will present, the court will look at a spouse’s employment potential, probable level of earnings based on work history, occupational qualifications, and the job opportunities in the community.

When a parent voluntarily lessens his or her earning capacity, the court will look very carefully at the facts to determine that parent’s earning capacity as opposed to actual stated income. Here, your wife’s decision to stay home with your children is certainly admirable. But under the circumstances, including the economic situation in the United States today, we don’t believe a court will fall for it.

SoloFact: When parents die simultaneously and nominate a third person as custodian of their children, that nomination does not bind the family courts in making a custody determination based on the best interests of children. For that reason, custody disputes may arise between competing family members. For this reason, we think it’s a good idea to name third-party trustees to handle the finances rather than family members, because without access to the funds, there may be fewer post-mortem custody disputes.