August 10, 2006

Ask The Lawyer

Jobless ex-spouse may need to comply with employment
efforts order or face imputation of income

This week's question:
I have a problem. My ex-husband quit his job with a high-tech firm a few months ago and refuses to look for work. In the meantime, my bills continue to mount up since he is not paying child support or spousal support as he is supposed to do. I have asked him to please get a job so he can pay support but he just doesn't try to get a job. Is there anything I can do?

Erica E.
Almaden Valley

Dear Erica,
There may be something you can do, Erica. Let us assume that you have a valid court order for child support and spousal support. Let us also assume that payments have not been made for some time and that it is not due to a sudden accident, illness or emergency of some kind.

You may be able to have the court issue an Employment Efforts Order. This is a court order issued in family court after notice to the other side and a hearing. At the hearing, both sides present their case and the judge makes a decision.

If the Employment Efforts Order is not complied with, the court may impute income to the non-worker. For example, if the person had a good track record or capacity of making $75,000 per year, that amount may be deemed earnings for that person.

If the facts are there to support the granting of the Employment Efforts Order, the actual order may contain some of the following fairly typical provisions:

Petitioner (or respondent) (name) shall make all good faith efforts to seek and obtain full employment commensurate with his or her skills and abilities; failure to do so may result in the imputation of income for the purpose of determining child and spousal support. It shall be the job seeker's obligation to establish the performance of all good faith efforts to accomplish such goal.

The job seeker shall keep accurate written records of all efforts toward obtaining employment, including registering for work during any periods of unemployment. These records shall be provided to the other party upon demand, but no more frequently than monthly at the end of each month. Such documentation shall include the name and address of the potential employer or contact, the date of the job application and/or interview, the name and address of the potential employer to which a resume' was sent, the name and address of all employment agencies with which the party is registered and documentation of any follow-up efforts made with any potential employers. The job seeker shall apply for not less than five jobs every two weeks, and shall provide records of such application as above provided and at the review hearing. Failure to do so may result in imputation of income and/or criminal sanctions.

In the event that the job seeker becomes employed, the job seeker shall within 48 hours notify the other party of the name, telephone number and address of the new employer, as well as the rate of pay. Any modification of support as a result of obtaining employment shall be effective as of the date of the employment.

It is expected that the job seeker will have obtained full employment by (date) or ($___ amount) may be imputed for (number) months. It shall be the job seeker's obligation to establish both the performance of all good faith efforts to accomplish such goal and the inability to earn the imputed amount. Such earnings or imputation shall apply, discounted for taxes, to the marital standard of living which is ($___ amount) per month/per person.
The parties shall return to court on (date) at (time) in department (number) to review employment efforts, to recommend additional or different efforts, and, if appropriate, to impute income and recalculate support based on the lack of good faith efforts toward obtaining employment or income. Such imputation and recalculation shall relate back to the original date of the order.

So you can see, Erica, there may be some hope for you in your particular situation. You will want to discuss this with your own attorney, of course, for a full review of the entire matter.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.