For both child and spousal support, the petitioner must prove both her income and the defendant’s income.
- Proving the petitioner’s income. Plan for your client to testify about her income and employment and to introduce evidence of that income in the form of wage statements, tax returns, etc. If your client is unemployed, be prepared to argue why income should not be imputed to her. For example, if she lost her job or suffered employment instability because of the abuser’s harassment or abuse, you can argue that the abusive party should be estopped from benefiting from his own bad acts. Similarly, if the abusive party did not allow the victim to work when they were together, attorneys should argue against income imputation on grounds of both equity and fairness. And, by statute, if she is disabled or the primary caregiver of a child under the age of 5, income should not be imputed.1
- Proving the defendant’s income. The first TRO issued by the court should include an order that requires the defendant to bring proof of his income to the hearing.2 But lawyers should prepare to prove the abuser’s income without the proof that he has been ordered to produce because the defendant may fail to bring records to court, hide or lie about income, or not appear at all. Some clients will have access to old tax returns or wage statements that can prove the defendant’s income. Where you suspect that the defendant is concealing or underreporting income, La. R.S. 9:315.1.1 provides guidance on the types of evidence that can be used to establish the defendant’s actual income.3
- Self-employment. In some cases, the defendant’s income is difficult to prove, particularly for those who are self-employed.4 Some abusers will conceal income by “banking” with relatives. In those cases, refer again to La. R.S. 9:315.1.1, and plan to introduce evidence of the parties’ expenses and standard of living and the income those expenses would require.5 In some cases, abusive parties report expenses on their income and expense worksheets that exceed the earnings they claim, creating impeachment opportunities for trial. Even social media postings can provide useful evidence that the abusive party is living beyond the means they claim in court.
- Underemployment. It is not unusual for abusive partners to punish their victims and avoid support obligations by becoming voluntarily under-employed after separation.6 For purposes of calculating support, the issue of whether a party is voluntarily under-employed is a question of the obligor-party’s good faith.7 The underemployment must result from no fault or neglect of the party.8 Any action that a defendant takes to reduce his income after separation or support orders should be examined. For example, if the defendant leaves a job to return to school, or stops working overtime after years of doing so regularly, you may be able to prove under-employment.
- 1La. R.S. 9:315.11(A).
- 2Question 17 on LPOR Form 1 specifically allows a court to issue this order. See Order of Protection: Temporary Restraining Order, La. Sup. Ct.
- 3See also Brossett v. Brossett, 49,883, p. 6 (La. App. 2 Cir. 6/24/15), 195 So. 3d 471, 476. For additional discussion of imputed income, see Section 6.5 of the chapter on family law.
- 4On self-employment income for purposes of child support, see Section 6.4.2 of the chapter on family law.
- 5La. R.S. 9:315.1.1(A)(3).
- 6For additional discussion of underemployment, see Section 6.5 of the chapter on family law.
- 7Romans v. Romans, 01-587, p. 3 (La. App. 3 Cir. 10/31/01), 799 So. 2d 810, 812; see also Dugué v. Dugué, 20-CA-292, p. 8 (La. App. 5 Cir. 03/24/2021), 316 So. 3d 170, 176; Martin v. Martin, 2016-CA-0324, pp. 5–6 (La. App. 4 Cir. 11/16/2016), 204 So. 3d 717, 721; In re Wyre, 2013-1347 (La. App. 1 Cir. 12/10/14), 2014 WL 6977844.
- 8La. R.S. 9:315(C)(5)(b).