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

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


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 layoff, 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 (717) 268-4287 or email us today.