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LJN NewslettersNewsSectionsThe Matrimonial Strategist

Shirking or Just Hard Times?

BY Mary Cushing Doherty
November 29, 2010

Various courts across the country have wrestled with the issue of earning capacity in child support cases. In bleak economic times, the ability to recover from unemployment or to improve one's underemployment is often hampered by factors beyond the parent's control. In a bad economy, a range of recent decisions can be cited successfully to overcome the opposing argument that an earning capacity in excess of current income should be attributed to a parent.

What Is 'Shirking'?

In a case from Wisconsin, the courts analyzed whether the wife in this instance was “shirking” when she chose to retire early, then sought re-employment but could not find work as a physician in her community. In Chen v. Warner, 280 Wis. 2d 344, 695 N.W.2d 758 (Wis. 2005), the Wisconsin Supreme Court analyzed whether a mother has shirked her child support obligation when she was unemployed and sought child support from her ex-husband. Dr. Jane Chen and Dr. John Warner divorced in 1999 after 18 years of marriage, during which they had three children who were eight, six and four years old. At the time of the divorce, both were working full time as physicians, earning about the same amount. They had agreed to no child support or maintenance between them, and had an equally shared custody placement schedule, following a week-on and week-off schedule.

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