In addition to the modifications to the Child Support Guidelines increasing the monthly aggregate income covered under the statute from $15,000 to $30,000 per month, a new statute defining “Voluntary Impoverishment” also goes into effect on July 1, 2022.  The claim of voluntary impoverishment, where one parent claims the other one is choosing to make less to pay less, has been bantered around by case law without a clear definition.  As of July 1, 2022, the term will be defined in the Family Law Article to mean when a “parent has made the free and conscious choice, not compelled by factors beyond the parent’s control to render the parent without adequate resources.” 

Previously, case law defined the concept to mean, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support, John O. v. Jane O. 90 Md. App. 406 (1992).  This definition, then required the party asserting the impoverishment, to prove that the impoverishment was done with the intent to avoid paying child support, a difficult burden to meet.  The Court of Appeals a year later in Goldberger v. Goldberger, 96 Md. App. 313, 624 A.2d 1328 (1993), recognized that the inquiry into the parent’s intent adopted in John O. is “too narrow.” The question is “whether a parent’s impoverishment is voluntary, not whether the parent has voluntarily avoided paying child support.  The intention to avoid support payments, is irrelevant. Goldberger, supra, 96 Md. App. at 326-27, a parent who has become impoverished by choice is ‘voluntarily impoverished’ regardless of the parent’s intent regarding his or her child support obligations.”  The new definition which will be found in Family Law Article Section 12-201 takes its definition from this case. 

Then too, prior to this enactment, the court opinions have also wrestled with the term “voluntary.”  In Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995), the Court of Appeals discussed the “voluntariness” where an inmate was unable to maintain employment.   Therein, the court borrowed the definition  of “voluntary”  from an unemployment case which held that an inmate’s impoverishment is “voluntary,” only if done “by his . . . own choice, intentionally, of his . . . own free will.” Allen v. Core Target Y. Prog., 275 Md. 69, 79, (1975). The contention that incarceration and subsequent impoverishment should be considered “voluntary” because the inmate made the conscious choice to commit a crime contorted the meaning of the word “voluntary.”  “For these reasons, the court held that a prisoner is only “voluntarily impoverished” as a result of incarceration if the crime leading to incarceration was committed with the intention of becoming incarcerated or otherwise impoverished.”  Consequently, the statue contains the words “free and conscious choice.”

 The new Family Law Article §12-204(b)(2) also expands on the factors, many borrowed from case law, for the court to consider when determining potential income. An expansion of factors was considered important in light of the fact that for the majority of orders imputing income, only one in three collected any income and over half the parents had made less than $5000 the year prior to the order. The factors the court should consider are as follows:

• Age
• Physical and behavioral condition
• Educational attainment
• Special training or skills
• Literacy
• Residence
• Occupational qualifications and job skills
• Employment and earnings history
• Record of efforts to obtain and retain employment
• Criminal record and other employment barriers
• Employment opportunities in the community where the parent lives, including:
  • Status of the job market
  • Prevailing earnings levels
  • Availability of employers willing to hire the parent
• The parent’s assets
• The parent’s actual income from all sources
• Any other factor bearing on parent’s ability to obtain funds for child support

If the issue of impoverishment is raised, the court under the new law must address it.  It is important to note that Maryland law does not allow permit these legislative changes to the child support guidelines law, in and of themselves to serve as the prerequisite for a material change in circumstance to justify a modification of child support (Maryland Code, Family Law Article §12-202(b))