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Routes: Law Desk / Divorce — Earning Capacity
“But I’m Not Even Making That Much”
One of the hardest moments in a support fight is when a judge sets support on income you don’t actually have — based on what you could earn, or on the assets you hold. California calls that imputing earning capacity. Ava and Michael take both sides, then the law.
His Side, Her Side — the Same Facts, Two Views
His Side (Michael):
“I’m between jobs and my billables are a few hours a week. Setting support as if I earn a top salary — or telling me to sell down a portfolio — isn’t my real income.”
Her Side (Ava):
“And I can’t plan a household on someone choosing to under-earn. If a person has the skills and the chance to work, the court shouldn’t let them dial their income down at the family’s expense.”
His Side (Michael):
“I’m looking for work aggressively — capacity means a real opportunity, not a wish.”
Her Side (Ava):
“Then show the search. If the opportunity is genuinely there and unused, capacity is fair. If it isn’t, actual income should control.”
Ava Asks, Michael Answers — Earning Capacity, Plain English
Ava:
What income does a court normally use?
Michael, Esq.:
For child support, the guideline runs off each parent’s actual gross income under Family Code section 4058 — salary, wages, self-employment, and more. Spousal support is set under the Family Code section 4320 factors, which include each spouse’s earning capacity and the marital standard of living.
Ava:
What does ‘imputing earning capacity’ mean?
Michael, Esq.:
It means the court uses what you’re capable of earning instead of what you actually earn. Under section 4058(b) for child support, and as a 4320 factor for spousal support, a judge can impute income — but generally only when the party has both the ability and the opportunity to earn more.
Ava:
What’s the test for opportunity?
Michael, Esq.:
California courts look at ability, opportunity, and willingness — the idea that there’s an actual job available that the person could take. Opportunity usually means an employer willing to hire, not just that a field exists. A documented, good-faith job search is powerful evidence that the opportunity isn’t there.
Ava:
Can a court base support on my assets?
Michael, Esq.:
It can consider the income your assets produce or reasonably could produce — earnings from a portfolio can be treated as available income. Whether a judge should effectively require you to spend down principal is more contested and fact-specific; how your assets and their yield are presented matters.
Ava:
How do I fight an over-inflated income figure?
Michael, Esq.:
With records: pay stubs or billing showing current earnings, a documented job search, and evidence of the real market for your skills. Imputation is discretionary, so the judge weighs what’s in front of them — build that record.
Ava:
Does the marital lifestyle change the number?
Michael, Esq.:
For spousal support, yes — section 4320 ties support to the standard of living established during the marriage, balanced against both spouses’ circumstances and the goal that a supported spouse become self-supporting within a reasonable time.
What to Do
California can set support on your actual income, your earning capacity, or the income your assets produce — but imputing capacity generally requires both ability and a real opportunity to earn. If a judge over-stated what you make, the answer is evidence: current earnings, a documented job search, and the real market for your skills. A free Law Desk consult can help you build that record.
Law Desk by Michael Benavides, Esq. — free family-law consult | CA Bar No. 270714 | Sacramento, Modesto, San Jose, San Francisco & Oakland | 707-362-4166 | attorneymichaelbenavides.com
ATTORNEY ADVERTISING. Law Desk is a legal-content brand of the law practice of Michael Benavides, Esq., California State Bar No. 270714. Ava is an editorial brand voice, not an attorney; only Michael Benavides, Esq. provides legal analysis. The ‘His Side / Her Side’ voices are illustrative perspectives for balance, not legal advice or a real client. General information only — not legal advice; no attorney-client relationship is formed by reading this. This is a neutral, non-partisan explanation of California law and does not favor either spouse. Authority referenced (Cal. Fam. Code §§ 4058, 4320; earning-capacity imputation (ability & opportunity)) is as of mid-2026; California law may change — confirm current statutes and cases before acting. Prior results do not guarantee a similar outcome.
