What happens when someone is not employed or underemployed, and child support is at issue? The Nevada Administrative Code (“NAC”) allows the Court to impute income to a parent if the parent is not employed or underemployed “without good cause.” What does impute income mean? It means setting an income that someone is able to earn, but not earning at the present time.
Let’s start with underemployment. What does underemployment mean? There is no specific example of underemployment that is provided for under the law, it would be a case-by-case analysis by the Court. So, we are left with using common sense and reasonableness to address underemployment. Here are some examples that that may help when determining whether someone is underemployed.
· If prior to litigation a parent is earning $100,000.00 and then immediately after litigation takes a lower paying job at $60,000.00.
· A parent with a degree in nursing who has passed the Nevada licensing, works at a clothing store.
· A parent goes from working a full-time job to a part-time job, based upon a request of the parent.
It is not underemployment, in our opinion, for a parent who was working earning $100,000.00 is laid off from employment, and accepts a job earning $60,000.00. A perfect example of this situation may be due to the COVID-19 pandemic. A parent was working on the Las Vegas strip and is laid off from that job, and the only job they can find is working for a casino off the Las Vegas strip. A parent is not going to be penalized by the Court because their industry is experiencing downturns resulting from the state of the economy (i.e., tourism, and gaming, are good examples).
When it comes to imputing income, NAC requires the Court must consider the list of factors set forth below, but the list is not all inclusive and other factors can be raised for the Court to consider. The factors are as follows:
· Assets;
· Residence (although NAC does not say it, in our opinion it mean equity and monthly costs);
· Employment and earning history (pulling information from the Social Security Administration for historic information);
· Job skills;
· Educational attainment;
· Literacy;
· Age;
· Health;
· Criminal record and other employment barriers;
· Record of seeking work;
· Local job market;
· Availability of employers willing to hire; and
· Prevailing earnings level in the community.
Again, the list is not all inclusive and you can ask the Court to consider other factors. If you are requesting the Court impute income to the other parent for the purpose of calculating income, you should consider conducting discovery regarding the specific factors set forth herein. Discovery regarding these factors will assist the Court in setting child support using the correct imputed income.