Family Law

In a Rhode Island family law proceeding, usually involving the establishment or modification of child support, you may hear the judge or an attorney state that perhaps one or the other of two parents need to have an earning capacity set.  Yet what is an "earning capacity" and what affect might it have on the child support at issue?

Earning capacity is generally raised when one or the other of two parents is alleged to "not be pulling their weight" so to speak when it comes to the amount of money they could or should be earning in order to support the minor child(ren). 

Typically the issue is addressed when one parent files a Motion to Set Earning Capacity for the other parent.  You see this motion more frequently where a father is making considerable money and he gets laid off from his company or gets taken out of work for reasons of TDI (Temporary Disability) and is not bringing in nearly as much as when he was working full-time.  You will also see it when the payer of the child support, usually the father, has a change of position or change of career and that change comes with a reduced income.

A Motion to Set an Earning Capacity is typically an evidentiary hearing which allows both parties to question witnesses under other and to enter into evidence any relevant and admissible documentation that has a bearing on the issue of the respondent's ability to earn income.

Regrettably this motion is somewhat insidious in character.  The objective of the moving party may be one of two tacts.  Usually the moving party wants to show that the respondent has previously made more money than he or she is currently making and therefore his or her earning capacity is the higher amount of money he or she previously made.  If the court were to buy this argument then the respondent may only be bringing in $488 per week in actual income but the court may find that the respondent's earning capacity is the $975 per week the respondent used to make through former employment.

As you can imagine this has a dramatic affect not only on the amount of child support that the court may order the respondent to pay but it also may render the respondent unable to survive if he complies with the child support order.  The respondent is then placed in an untenable position where he or she will end up in contempt of court simply because he or she paid minimal expenses to survive.

The purpose behind the Motion to Set an Earning Capacity seems to be to stop the malingering of men and women who work the system and do not properly support their children by avoiding work and essentially becoming deadbeats who prey on public programs not because they have to but because they choose to as a way of life.

Unfortunately, all too often the Motion to Set an Earning Capacity is used by many Rhode Island Family Law Attorneys as a method of squeezing more money out of good people who have, in fact, supported their children, but may have come upon rough times.  Attorneys know full well that without substantial documentation or witnesses presented on behalf of the respondent, that the decision of the court may come down to an issue of credibility between the movant and the respondent.  This becomes a sad state of affairs if the respondent answers truthfully and correctly and provides ample information by testimony to demonstrate that an earning capacity should not be set above what he or she is making but the judge believes either from appearances or demeanor the testimony of the movant which may well consist of lies.

You can consider "Earning Capacity" to be your ability to earn income at the current time, based upon your previous employment, trade skills and education in the current marketplace under current economic conditions.

If any of the foregoing article was confusing and you are faced with this motion, do not take it lightly.  You should contact a family law attorney and get legal advice to know the proper means of your defense for your situation.

In a nut shell, the establishment of an Earning Capacity for you means that you will be paying child support or perhaps temporary spousal support based upon an amount of money that you do not make and perhaps have no chance of making but which the court orders that you have the "ability" to make.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

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