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  In Niblett, the father is convicted of sex with a minor, goes to prison, and becomes unemployed.  (Niblett v. Niblett, Virginia Ct. App. Record No. 0716-15-1, December 15, 2015).  In prison, he has no income.  The trial judge finds him to be voluntarily impoverished but imputes no income, ruling that imputing income to someone who has none would constitute speculation as to what a felon would earn upon release.  The mother receives no child support award, and she appeals.

            The published decision of the Virginia Court of Appeals holds that if a court finds voluntary impoverishment and has evidence of what the person would have been earning, such as recent past income, then it is not speculative to impute income when calculating the presumptive guideline child support amount.  Moreover, it is reversible error not to make the calculation and include the figure in the guideline.

            After determining and disclosing the presumptive amount, a court may deviate from it.  For example, a court might conclude it would not be in the children’s best interest for their father to leave prison owing thousands of dollars in back child support.  If the lower court had “shown its work” here, then a child support award of zero dollars might have been sustained on appeal.

            Crafting a support award is like DNA sequencing or a downhill ski race.  If you omit something, the result doesn’t count.  Trial judge Jeffrey W. Shaw left out imputed income.  The appeals court sent the case back for him to re-do his work.
Olivier Denier Long is licensed in Maryland, Virginia and Washington, DC. This site does not provide legal advice. Case results depend upon a variety of factors unique to each case, and the outcome in one proceeding does not guarantee or predict a similar result in the future.


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