A difficult issue arises when a parent or spouse who is required to pay child maintenance or spousal maintenance claims that they are unable to earn much or any income as a result of alcohol or drug abuse.
Typically a court will impute income to a spouse who is willfully underemployed and force them to pay child maintenance and spousal maintenance on the income a judge feels that person could reasonably earn given their education and work history.
When underemployment is the result of a drug or alcohol problem the court will need to determine:
a) if the drug and/or alcohol abuse is voluntary or if it has reached a stage that the person cannot stop; and/or
b) does the addiction prevent the person from earning income.
Sometimes a payor spouse can obtain and produce a letter from their doctor describing the extent of the addiction and whether or not it prevents the person from working. This type of evidence is helpful for the court to determine the person’s ability to pay maintenance.
It is also important for the doctor and the payor spouse to set out what steps have been taken in the past to treat the problem and what steps will be taken in the future. Is the payor spouse willing to attend a treatment facility and if so how long will treatment take and when can the person expect to be able to return to work.
If the payor spouse is unable to produce any reliable evidence of their addiction the court may draw an adverse inference from this and impute income to that person.
Deborah A. Todd