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Posted on November 17, 2015 in Assets,Child Custody,Divorce Articles,Family Law

In re Marriage of Eggers, 131 Cal.App.4th 695 (2005).

Eggers tells that the court has to follow the ability and opportunity analysis before imputing income even when someone loses their job for misconduct. Thomas Eggers was terminated from his job at The Edison Company for sending “offensive emails of a sexual nature”, over a ad844519-f818-47be-bd7a-cb11799a8ec2prolonged period of time. On appeal, the court found that “the trial court erred by so construing the termination of employment as voluntary where defendant’s employment was terminated for using extremely poor judgment in sending multiple e-mails that were sexual in nature to a co-worker.” (In Re Marriage of Eggers, 131 Cal.App.4th 695.)

Usually when you quit a job, like in Ilas, it’s voluntary so the court can impute income based on the job you quit. When you are fired or laid off, it’s involuntary so the court has to use the ability and opportunity analysis to determine your earning capacity. Losing your job, even for really stupid reasons, may be considered involuntary. When proving ability and opportunity, the payor has “the burden to prove that he either lacked the ability to find employment or had no reasonable opportunities to obtain employment.” (In re Marriage of LaBass & Munsee , 56 Cal.App.4th 1331.) The court cannot automatically impute income at the level of the old job, but he has the burden to prove that he is unemployable to avoid the court imputing income at any level.