What happens to alimony or child support when an ex-spouse isn’t working?  Generally, the presumption of the law is that each party should work in a way that maximizes their income.  If a spouse wants to retire early, quit their job for no reason, or reduce their work to being a summer badge checker at the beach, they can do so but not at the expense of the other party or their child(ren).  If a court is looking at this issue, they can impute income to the party who is unemployed or underemployed.  Imputing means assuming what their income should be if they were maximizing their earnings potential.  In the recent “Great Recession” with the unemployment rate being near 10%, courts recognized that some parties simply could not find work and made accommodations accordingly (so long as the unemployed spouse made best efforts to find a job).

In Kathleen Ungvarsky v. John Ungvarsky (A-1852-14T3), a recent unpublished decision by the Appellate Division nicely explained what a court can do (I’ve removed the case citations for easier reading):

A court can impute income to a party for support purposes when the party is, without just cause, intentionally and voluntarily underemployed or unemployed. Stated differently, when a spouse is not
earning his or her true potential income, “an imputation of income based on that potential is appropriate” (potential earning capacity of party, not his or her actual income, should be considered). The imputed income figure is one the party is capable of earning.  Before imputing income, however, a judge must first find that the spouse was voluntarily underemployed or unemployed without just cause.

We deal with these issues in divorce mediation and in mediating post-judgment modifications.  Contact me to discuss further.