One of the many important decisions any parent suffering through a divorce will have to face is how to best care for their children. In California, both parents have the legal responsibility to provide their children with financial support. As defined in California, child support is the ongoing monetary expenditures and payments necessary to cover a child’s living and medical expenses.

There are many criteria that go into calculating child support, including, but not limited to, the parents’ custodial time, earnings, and other income. Two important cases have been handed down that deal directly with a parent’s earning capacity, as opposed to their actual income, when determining child support.

The first case is Marriage of Mosley (2008) 165 Cal.App.4th 1375, wherein it was decided that the court, when computing child support, has discretion to consider a parent’s earning capacity “in lieu” of income “but must consider children’s best interests.” A child’s best interests will always be at the center of any child support order, but what is distinguishable about this case is the fact the court is now allowed to look beyond a parent’s actual income, when determining child support. The court may now consider the capacity a parent has to earn, whether he or she is actually earning it or not.

In Marriage of Cohn (1998) 65 Cal.App.4th 923, 932; Marriage of Hubner (2001) 94 Cal.App.4th 175, 187, it was determined that the imputation of earned income must be based on actual evidence not drawn “from thin air.” In other words, it is not legally sufficient for one party to claim that the other party earns a certain amount of income – they must prove it, with legally recognizable proof or documentation. If not, the court will not have the sufficient evidence it needs to form a proper basis for a child support order.

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