I have written previously about how courts expect divorced spouses to maximize their incomes when it comes to alimony or child support. If a spouse fails to maximize their income, the court can impute (assume what it should be) income for that spouse. But what happens when one spouse contends that income should be imputed to a spouse who does not accept all of the overtime offered to them? A published trial case addresses this issue.
In RAQUEL S. FERRER v. DENNIS COLON (Essex FD-07-2392-07), both parties asked the court for relief on child support. The defendant asked the court to impute income to the plaintiff as she was not working the full amount of overtime he had worked in the past and thus was underemployed. The plaintiff disagreed, obviously. Both spouses are Newark police officers.
How does the court determine whether a party is underemployed?
The Appellate Division has held that “underemployment” means the person “is intentionally failing to earn that which he or she is capable of earning.” Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). If “a [person] is not earning to his or her true potential and capacity then an imputation of income based upon that potential is appropriate.” Stiffler v. Stiffler, 304 N.J. Super. 96, 101 (Ch. Div. 1997).
Ultimately, the court found that the plaintiff was not underemployed by virtue of her not accepting all overtime available to her. The court rules regarding child support guidelines do not require maximizing overtime. Child support was calculated using past overtime and income from a second job in past years.
If you are seeking a divorce, consider divorce mediation. Call 732-963-2299 to discuss mediation further with me.