The most common issues that arise in a divorce proceeding are financial ones and how to determine awards of child support and spousal maintenance. Income is relevant to determining both of these awards.
“In determining a party’s maintenance or child support obligation, a court need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential.” Brown v. Brown, 239 A.D.2d 535, 535, 657 N.Y.S.2d 764, 765 (1997) (emphasis added). Additionally, a party’s physical and mental capacity is taken into account in his or her ability to earn a living. Brandt v. Brandt, 36 Misc. 2d 901, 903, 233 N.Y.S.2d 993, 995 (Sup. Ct. 1962).
The Court looks at earning potential rather than the current income to ensure that the party against whom income is being imputed is not intentionally reducing their income to have to pay less spousal or child support. Therefore, if a party has changed jobs or is unemployed or underemployed, the Court will look to see if the party has diligently sought re-employment before taking the job he or she currently holds. Further, if the party does not show evidence of a diligent job search, the Court does not have to seek evidence of intentionally reducing income to avoid support obligations. See Bigler v. Bigler, 299 A.D.2d 435, 436, 749 N.Y.S.2d 733, 734 (2002).
For example, a spouse who lost job as a lawyer and now works as a paralegal will be required to provide evidence of how he or she tried to find a job that was equivalent to the one he lost as a lawyer. This may include evidence of how the spouse searched for jobs, how many resumes were sent out and how often, how many interviews the spouse went on, and how long the spouse searched for a job before taking his or her current job. If the Court finds that the job search was in fact diligent, it will be more likely to use the income of new job for purposes of child or spousal support. However, if the Court does not find that the job search was diligent, it can use previous income to establish child or spousal support without needing to find that the change in jobs was an intentional method to reduce support payments.
While a Court will look at earning potential rather than current income in determining the amount of support to be paid by a party, the Court will not award an amount that would exceed the seeking party’s legitimate monthly expenses such that it would be unjust and inappropriate. See S.A. v. L.A., 42 Misc.3d 744 (2013).
Another factor that is considered in determining support is the earning potential of the spouse seeking spousal support. In such a situation, the Court will look at educational qualifications and previous jobs held by the seeking party to determine the earning potential of the seeking spouse. See Lago v. Adrion, 93 A.D.3d 697, 698, 940 N.Y.S.2d 287, 289 (2012). This may reduce the amount of the spousal support a party has to pay because the other spouse is able to support him or herself by getting a job that fits his or her educational qualifications.
This may also allow for a spouse to receive temporary maintenance or support while he or she finds a job that will allow them to become self-supporting. The Court will take into account factors regarding how long the spouse has been out of the work force and the ease with which he or she can obtain a job with his or her educational and past employment experience.
These are only some factors that the Court will use in determining child and spousal support. Each case is fact specific and Rincker Law PLLC is prepared to help in the imputation of income and evaluating the factors involved in this process.