A hypothetical income fixed during a divorce
A hypothetical income fixed during a divorce
"I've been married for a year and I've just found out that my wife wants a divorce. We have a 9-month-old child. I'm currently unemployed. I've heard that it's possible for the judge to take a hypothetical income into account when setting the child's maintenance. What does this mean? When can such an income be taken into account?
Antoine, Nyon
According to article 276 of the Civil Code (CC), the father and mother must provide for the maintenance of the child and bear the costs of his or her education, training and the measures taken to protect him or her. This support is provided by care and education or, where the child is not in the custody of the father or mother, by financial benefits. Article 285 CC stipulates that the maintenance contribution must correspond to the needs of the child and the situation and resources of the father and mother; account is taken of the child's assets and income, as well as the contribution of the parent who does not have custody of the child to the child's maintenance.
Case law teaches that the costs of child support must in principle be apportioned in proportion to the respective contributory capacities of the father and mother. Each parent's ability to contribute is determined on the basis of his or her net income, from which basic maintenance under debt collection law must be deducted, as well as the incompressible expenses that the parent must meet. The main eligible expenses are housing, compulsory health insurance, public transport and current tax actually paid.
When setting the maintenance contribution, the judge must in principle take actual income into account. However, he may depart from this and impute a hypothetical income insofar as the person in question could achieve it by showing goodwill and making the effort that can reasonably be expected of him. To do this, the judge must first determine whether the person concerned can be expected to engage in gainful employment or increase it, taking into account his or her education, age and state of health. The Court must then examine whether the person concerned has the actual possibility of carrying out the activity thus determined and what income he or she can obtain from it, taking into account the subjective circumstances mentioned above, as well as the labour market.
In the event that your wife is awarded custody of your child, it is therefore possible for the Tribunal to impute hypothetical income to you if you can reasonably be expected to engage in gainful employment, have the opportunity to work and are not making reasonable efforts to find a job.
