ALIMONY-THE ATTACK ON NON WORKING SPOUSES

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During the course of a divorce or a modification dealing with support issues, be they alimony and/or child support, you may encounter terminology entitled “attribution of income”. This is not arcane language. This is often a very important issue in determining the amount of support.

Essentially, attribution of income means that a non-working spouse either has the ability to work and earn up to a certain amount of money per year, or the working spouse is underemployed, working at a job which pays less than that spouse is capable of earning.

A classic example of how attribution of income is determined and utilized is described in this fact pattern. A lawyer is getting divorced from his stay at home wife and has been ordered by the probate court to pay alimony and child support totaling $150,000 per year.

Subsequent to that support order, the lawyer comes to court seeking a reduction in support, because of a material change of circumstances: namely, the lawyer has decided not to practice law any longer and has gone to rabbinical school.

If we examine just the numbers of a situation like that, the husband who perhaps was earning $600,000 per year has now negligible income. Certainly, by his presenting his financial statements filed with the court, he has shown a material change of circumstances, warranting a modification of his support payments. However, this is not what the judge stated at the hearing when this case was argued.

The judge praised the lawyer for his doing such a righteous action by enrolling in the clergy; the judge commented that he could certainly do that, but he still had to pay the previously ordered amount of $150,000 per year for support. The judge correctly found that the lawyer had voluntarily changed his position which resulted in a material reduction of his income. Because the lawyer left his profession in law voluntarily, the judge could hold that the lawyer still had the ability to earn $600,000 per year under the theory of attribution of income. In other words, the judge found that the lawyer, if he chose to work in his profession, could still earn and still pay as had been previously ordered.

This issue of attribution of income comes up when dealing with alimony and with child support. The non-working, or under employed, spouse may be attacked for having the ability via education and training to earn a certain amount of income, which if factored in, would impact the ultimate amount of support to be paid. As in the example of the lawyer/rabbi, the court can find that the income that could be earned by that party would be materially larger.

Since March is the first month of the enactment of the Alimony Reform Act of 2011, the issue of attribution of income continues to play a role in the determination of what a spouse should pay to the other. The most recent Appeals Court decision dealing with this issue of attribution of income was reported by the court in a published decision in February, 2013, entitled Ulin v. Polansky, 11-P-1450.  The decision issued by Justice Graham reversed the Probate Court Judge’s decision for his failure to make consistent findings in support of his attributing income to the former wife. I am happy to report that this appeal was handled by me, and I was successful in having the trial judge’s decision reversed and remanded for further findings regarding attribution of income. In plain English, the trial judge failed to support his decision to attribute income to the former wife. The trial judge found that, based upon the evidence, the former wife was making best efforts to become re-employed after losing her job. Because the loss of her job was involuntary, the judge should not attribute income to her. This was true inasmuch as she was making best efforts to find a job that would allow her to earn as much as her previous employment.

The magic words when dealing attribution of income are that the job was voluntarily abandoned and little if no effort was being made to become re-employed in a job from which the earnings would be similar.

This issue also comes up when trying to determine child support as well. And depending on what your position is, whether you are seeking support or defending against a request for an extreme order, this is an issue that occurs in a great number of divorce and modification actions. This issue has and will continue to arise in alimony cases, whether for the initial orders in a divorce action or a modification action under the new Alimony Reform Act of 2011. Through your understanding of this issue, which can become quite complex at times, you will be able to understand the positions that your attorney and opposing counsel are taking, and not feel overwhelmed by obscure terminology.

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