Southern California Family Law Blog

The court in In Re Marriage of Bardzik, affirmed an order modifying child support in a case with unusual facts. In this case, the mother retired early and then asked for child support well after the divorce. The prior court order held that neither parent had to pay child support to the other parent because both parents had similar incomes and both parents shared equal custody of their children. However, shortly after mother retired she requested that the court order child support based on her anticipated change in income after retiring. Father argued that mother should be imputed income based on her ability to earn, but father did not present any evidence on mother’s ability to earn.

The trial court did not impute income to mother and ordered father to pay mother child support. The appellate court affirmed but stated that if one parent seeks to modify an existing order as to have income imputed to the other parent, the parent seeking imputation bears the burden of proof of showing that the other parent has the ability and the opportunity to earn that income. In this case, father failed to meet that burden because he did not prove that mother had the ability and opportunity to earn a specified income, but only informed the court of what she earned before retirement.

Therefore, had father properly presented at the court hearing evidence of mother’s ability and opportunity to earn a certain income than father would likely not have been ordered to pay support to mother. It is important to seek legal counsel prior to going to court to make sure the evidence is presented properly according to the family law rules to get the best outcome.

Wallin & Klarich has many years of experience in family law. Our Riverside family law attorneys know from long experience what works in a divorce case, and are prepared to fight to get you the best possible outcome. With 16 attorneys in 33 offices throughout Southern California, we can be there when you need us — wherever you are. If you’re thinking of hiring an attorney for a mediated divorce, call us today at 1-888-749-7428 for a consultation, or fill out the online case evaluation form to the right.

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