N.D. Admin Code 75-02-04.1-07 - Imputing income based on earning capacity

1. For purposes of this section:

a. "Earnings" includes in-kind income and amounts received in lieu of actual earnings, such as social security benefits, workers' compensation wage replacement benefits, unemployment insurance benefits, veterans' benefits, and earned income tax credits; and

b. An obligor is "underemployed" if the obligor's gross income from earnings is significantly less than this state's statewide average earnings for persons with similar work history and occupational qualifications.

2. An obligor is presumed to be underemployed if the obligor's gross income from earnings is less than the greater of:

a. A monthly amount equal to one hundred sixty-seven times the federal hourly minimum wage; or

b. Six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications.

3. Except as provided in subsections 4, 5, 6, and 7, gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.

a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b. An amount equal to six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications.

c. An amount equal to ninety percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided.

4. Monthly gross income based on earning capacity may not be imputed under subsection 3 if:

a. The reasonable cost of child care equals or exceeds seventy percent of the income which would otherwise be imputed where the care is for the obligor's child:

(1) For whom the obligor has primary residential responsibility;

(2) Who is under the age of thirteen; and

(3) For whom there is no other adult caretaker in the obligor's home available to meet the child's needs during absence due to employment.

b. A current medical statement confirms the obligor suffers from a disability sufficient in severity to reasonably preclude the obligor from gainful employment that produces average monthly gross earnings equal to at least one hundred sixty-seven times the hourly federal minimum wage.

c. The unusual emotional or physical needs of a minor child of the obligor require the obligor's presence in the home for a proportion of the time so great as to preclude the obligor from gainful employment that produces average monthly gross earnings equal to one hundred sixty-seven times the hourly federal minimum wage.

d. The obligor has average monthly gross earnings equal to or greater than one hundred sixty-seven times the hourly federal minimum wage and those earnings are similar to or greater than the statewide average earnings for persons with similar work history and occupational qualifications.

e. The obligor is under eighteen years of age or is under nineteen years of age and enrolled in and attending high school.

f. The obligor is receiving:

(1) Supplemental security income payments;

(2) Social security disability payments;

(3) Workers' compensation wage replacement benefits;

(4) Total and permanent disability benefits paid by the railroad retirement board;

(5) Pension benefits, as defined in subsection 9, paid by the veterans benefits administration; or

(6) Disability compensation paid by the veterans benefits administration based on an overall disability rating of eighty percent.

g. It has been less than one hundred eighty days since the obligor was released from incarceration under a sentence of at least one hundred eighty days.

h. The obligor is incarcerated under a sentence of one hundred eighty days or longer, excluding credit for time served before sentencing.

5. If an unemployed or underemployed obligor shows that employment opportunities, which would provide earnings at least equal to the lesser of the amounts determined under subdivision b or c of subsection 3, are unavailable within one hundred miles [160.93 kilometers] of the obligor's actual place of residence, income must be imputed based on earning capacity equal to the amount determined under subdivision a of subsection 3, less actual gross earnings.

6. If the obligor fails, upon reasonable request made in any proceeding to establish or review a child support obligation, to furnish reliable information concerning the obligor's gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed based on the greatest of:

a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b. An amount equal to one hundred percent of this state's statewide average earnings for persons with similar work history and occupational qualifications.

c. An amount equal to one hundred percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided.

7. Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor's greatest average monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed. For purposes of this subsection, a voluntary change in employment is a change made for the purpose of reducing the obligor's child support obligation and may include becoming unemployed, taking into consideration the obligor's standard of living, work history, education, literacy, health, age, criminal record, barriers to employment, record of seeking employment, stated reason for change in employment, likely employment status if the family before the court were intact, and any other relevant factors. The burden of proof is on the obligor to show that the change in employment was not made for the purpose of reducing the obligor's child support obligation.

8. Imputed income based on earning capacity is an example of gross income and is subject to the deductions from gross income set forth in subsection 6 of section 75-02-04.1-01.

9. For purposes of paragraph 5 of subdivision f of subsection 4, "pension benefits" means only needs-based payments made by the veterans benefits administration to war-time veterans whose income is below a yearly limit set by Congress and who are age sixty-five or older or have a total and permanent disability.

Notes

N.D. Admin Code 75-02-04.1-07

Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; October 1, 2008; July 1, 2011. Amended by Administrative Rules Supplement 367, January 2018, effective 1/1/2018. Amended by Administrative Rules Supplement 2023-389, July 2023, effective 7/1/2023.

General Authority: NDCC 50-06-16, 50-09-25

Law Implemented: NDCC 14-09-09.7, 50-09-02(16); 42 USC 667