§1.07 Imputed Earning Capacity

You may consider "the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." [FC §4058(b).] This authorization has been affirmed in a long line of cases, the most important being Marriage of Regnery (1989) 214 CA3d 1367. Regnery imposed a three-pronged test to determine whether earning capacity should be considered, by asking what is the parent's:

1. Ability to work, including age, occupation, skills, education, health, background, work experience, and qualifications.
2. Willingness to work, demonstrated by good faith efforts, due diligence, and actual meaningful attempts to secure employment.
3. Opportunity to work, exemplified by an actual employer willing to hire.

If either the ability or opportunity to work is absent, a parent's earning capacity may not be considered. [Marriage of Regnery, supra, 214 CA3d at 1372-1373.] But if a parent is unwilling to work and has the ability and opportunity to work, you may impute an earning capacity to him or her. A parent's motivation for not pursuing income opportunities is irrelevant. [Marriage of LaBass & Munsee (1997) 56 CA4th 1331, 1338.]

You may impute income to both the payor and payee parent based on earning capacity when it is in the child's best interest. [Marriage of Cheriton (2001) 92 CA4th 269, 301.] In particularly difficult cases when it is not clear whether you should impute earning capacity to a parent, you may appoint a vocational training counselor or expert to analyze earning capacity. [See FC §4331(a).]