Today, we’re going to be talking about whether a parent is going to be attributed income for the purposes of the child support formula when one of the children is below school age. When we talk about below school age, we are speaking about prior to the child’s age of being eligible to enter into kindergarten. This subject can be very controversial sometimes and people have a tough time wrapping their head around it when the child support formula is run. Let’s say one of the people being divorced is not working. The law in West Virginia states that in the event that somebody is the primary residential custodian of the children, then the court cannot make that person go and get a job.
In fact, the person not working and watching those children, will not be attributed any kind of wages for the purposes of the formula. Let’s say when the court is doing the formula and shows one person making say $36,000 a year on that person’s side of the ledger. It’s going to show 3000 a month. If the primary residential custodian has the children and the children are under school age, the amount that’s going to be shown on the ledger on the other side is going to be zero. I should qualify that and say if the person is working, most of the time the courts are going to attribute that person that income if they’re actually earning income. That’s what most of the judges do. Let’s say you are the person working part time or that person might be working just at minimum wage or so many hours per week. In that instance, most of the judges I’ve seen have taken what they’re actually making and they are actually counting that in terms of the child support.
Sometimes, clients come into my office and they’ll ask why does my ex show to just have zero income? I have to explain to the person, the court found that they were not making any kind of money and that the children are under school age. Now what the court will often do is if the children are let’s say over school age and even if the main custodian of the children is not working, the court is going to attribute them some kind of income around here. It’s usually minimum wage, but sometimes you can make an argument that they should be attributed more than minimum wage. Just remember, at a minimum, most of the time what the courts are going to do is attribute that person to minimum wage after the children are above school age if still not working as well.
