Attribution of Income to an Unemployed Spouse at Divorce

In assigning child support and alimony, Massachusetts courts may “attribute” or “impute” income to a voluntarily unemployed or underemployed divorcing party. The imputed income is based on what that spouse could be earning, considering education, job history, experience, and local job opportunities.

However, a recent Appeals Court decision held that income cannot be attributed to an unemployed spouse on basis of that spouse’s ability to obtain employment, unless the court makes a factual finding that the spouse is not engaged in a reasonable job search. See Ulin v. Polansky, Mass. App. Ct. 11-P-1450 (2013).

In this case, a divorced wife became unemployed and had difficulty finding a new job. She sought an increase in child support payments from the husband, based on her change in circumstances. The trial court judge noted testimony that the wife was sincere in her search for a new job. However, the judge attributed $120,000 annual income to her, based on her present ability to obtain employment. The Appeals Court vacated this attribution of income, holding that “an attribution tied to earning capacity is to be based on whether a party has exercised reasonable efforts in seeking employment.” The trial court judge had made no such finding. The case was thus remanded for additional factual findings.

Unemployment or underemployment can have major effects on child support, alimony, and division of property at divorce. If you are dealing with a divorce or a post-divorce modification, these issues can significantly impact your quality of life, as well as that of your children. Contact the attorneys at Hutchins Law, P.C. for help today.

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