The Pennsylvania support statute defines earning capacity and outlines the factors a court must consider in applying earning capacity. There are also hundreds of cases in Pennsylvania that discuss earning capacity. But what does it really mean and what is its effect on the final support order? An understanding of earning capacity and its impact on a final support number is an important concept in counseling your client before going to court.

As an attorney, you should be evaluating the necessity of arguing earning capacity before you walk into court. Clients will often feel compelled to argue earning capacity of their estranged spouse without understanding whether it will affect the final numbers or not. If a spouse is only seeking child support, the earning capacity of the dependent spouse will have little to no effect on the final child support number. The guidelines are based on what the payor is earning and the payee’s income will have a very insignificant impact on child support. For example, if a spouse argues the dependent spouse can earn $45,000 gross per year, I might show the client if I run the numbers placing the payee spouse at zero, $20,000 and $45,000, the impact may only result in a difference of $20 per month. Your client must weigh the cost of saving $20 per month against the fees your client will spend winning an earning capacity argument.

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