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Ability to Pay Must Be Considered by Court in Making a Child Support Award

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Calcuation of Net Income specifies that the court must consider a realistic ability to pay, not a theoretical one. 

By Attorney Jeffrey B. Engle, Child Support Attorney, Harrisburg, PA

In determining the earning capacity of a obligor (person making the payments) of a support order, the court needs to consider what types of employment the obligor may obtain. 

Pa. R.C.P. RULE 1910.16-2(d)(4) Specifies as follows:

The trier of fact may impute to that party an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity.

In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.

The Annotations to this Rule provide:

Statutory provisions at 23 Pa.C.S.A. § 4322, as well as case law, are clear that a support obligation is based upon the ability of a party to pay, and that the concept of an earning capacity is intended to reflect a realistic, rather than a theoretical, ability to pay support.  (emphasis added).

What's the Takeaway?

A court should not be engaging in a hypothetical scenario for an obligor in determining what earning capacity should be assigned.  The determination of a parent's ability to provide child support is based upon the parent's earning capacity rather than the parent's actual earnings.  For instance, if an able-bodied 40-year-old male is trained as an electrician, he should be assigned an earning capacity based upon his actual wages or what he could realistically earn in the particular field if employed full-time.  If, however, he is out-of-work due to an involuntary lay-off, he should not be assigned an earning capacity as if he were working full-time.  Likewise, an electrician that is out-of-work should not be assigned an earning capacity of a more highly-qualified profession.

If you have questions or concerns regarding your current child support order and need assistance, you may call Shaffer & Engle Law Offices, LLC toll free or email us today.


I need advice on my situation. My ex-wife was court ordered to pay full medical support for our two boys in 2010. She has refused to pay while I am paying child support for both boys. We have joint custody and they preside with her at her residence. What are my options? It is now 2013.

Mr. Knodel- You should contact the domestic relations office where the support order has been entered. If there is an order that indicates she is to provide medical insurance/support for the kids, then you need to request that she be held in contempt of the order. The DRO should have a form available for you to fill out and outline your problem. Usually, but not always, the individual county website will have a link to the DRO office and they will have such forms available online. It's always frustrating to call the DRO because of the huge waits, however, in this instance, I think you have no choice but to contact them. Before you visit, however, get a form online and fill it out. It will save time at the window. In the meantime, keep all your medical receipts for the kids for the contempt proceeding. Co-pays, medicines, prescriptions, or any other records for out-of-pocket expenses you've been paying that may have been covered by her insurance since 2010.

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