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.
Comments 2
Pendente Lite Motion: Married in 1998. Have a Masters Degree in Physics, never worked in any related field. Had a home-based mom&pop online marketing business until 2008. Had a 5 mo. contract job which ended in January 2009. Been a homemaker ever since. Stay at home father to 2 boys, now 15 and 14, took care of home and a very demanding family lifestyle. In fact, always stayed home and never had any “jobs”, only a 5 mo. contract work in digital marketing.
Applied for over 13,000 jobs in digital marketing. Never got a single in person interview. I have online jobsite accounts that keep track of my job applications and an email folder keeping my rejection letters. Tax returns irrefutably show I had no income since 2008. Asked wife to allow me to go to law school she declined to invest marital funds in my education. A vocational expert can determine my ineligibility to enter workforce as I have absolutely no qualifications in any professional industry and have not been employed, other than self-employed, in the entirety of my marriage. Skills I attained while running home-based web marketing business are outdated, lost and not applicable to current market. I have no professional or advanced training in any field. I am the receiver of spousal maintenance and judge imputes me $75,000 income, cites cases used in his analysis, none of the cases, like Kay v. Kay, imputes any income to a homemaker stay at home spouse who is the receiver of the maintenance. The evidence from the all 3 cited cases irrefutably shows no income shall be imputed to the receiver of the maintenance who is a stay at home spose and has been unemployed for an extended period of time. In today job market and specifically in online media, marketing and ecommerce that I ever had any experience in, it is impossible to obtain employment after being unemployed for a year. My wife earns over the income cap and additional maintenance is not considered by the judge, yet I am imputed an income of $75,000 that I can never, never, ever earn and nobody in this world in their right state of mind can tell the court that I can earn $75,000 immediately. I need education to get into workforce, applied for Law School, that takes 3 years to graduate, and the Judge knew that I did apply for a law school. Do you think I may have a chance if I appeal to the pendente lite decision?
I have an associates degree in maintenance technology. My wife if we are legally married has a doctorate degree in anthropology. (I found evidence of a possible marriage to some guy over seas, both by online comunication from her and him, and her journal statements about the marriage) when we meet I made about 36,000 a year. She told me she had a 2 year green card. When she told me she was on birth control the one that gets inserted the metal one, we conceived our child. Than i found out that 2 years was more like a few months. I recently found out that before we meet for the first time she recieved a prothero of denial letters from Uscis. Long store, short she has continued to work a job making 38,000-42,000. She refused to pay any bills, she never bought diapers she wouldn’t put gas in the car, she never bought our son any toys. She kept seperate bank accounts, i paid the rent and the Mortgage, because of all of the expenses of having a child I had to work alot of overtime at my job and work a secound job on the side. I had to cook probably 97% of the meals, with the remaining 2.9% being days that I was so tired and my possible wife not cooking anything that i had to go and buy cooked food to eat. She cooked a maximum of 6 meals in a nearly 3 year mariage, i did all the grocery shopping and asked her continually to help out. She recieved an offer of employment to make $120000 a year which is 78,000-82000 more than what her income was and she turned it down. She has sense during the proceedings continually asked the court to grant her child support, and alimony. We became legaly seperated last year when she violated court orders by selling items i had purchased during the marriage and when she was using our minor child in a way to commit extortion. I do not want to waste to much of your time on the nit and grit of everything, i have been told by lawyers that getting her marriage license from a foreign country is basically impossible. All I have is a journal statement by her and an online comunication from her and him where he is asking if she has recieved the divorce documents several months before we had our ceremony. She checked never married on the certificate of marriage. My income range having an associate’s degree is 26,000-60,000 hers having a doctorate degree in anthropology is easily 4 times my range. There are plenty of openings for her. She also has a bachelors in biology she did several years in that field as well. I have found evidence of a possible secound doctorate degree as well. That degree alone can earn her more than my potential income. What cases should i research?