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Fighting Your Spouse’s Voluntary Decreases in Income: Imputation of Income During a Divorce Action

Once a divorce action is commenced, a monied (or greater monied) spouse playing fast and loose with his/her family’s financial security may argue that his/her income has decreased. That spouse may seek to attribute this alleged loss of income to loss of employment, voluntary retirement, or a decrease in his/her regular or overtime hours. This is referred to colloquially as litigation onset poverty syndrome, as without the existence of a divorce action, the likelihood of the claims of financial difficulty would not exist. This is because a misguided spouse believes that s/he will have to pay less, or nothing, to the other spouse if s/he can show a decreased (or no) income during the pendency of the divorce action. However, this belief is misguided and will not prevent an order of support.

It is well settled that a court does not need to rely on a party’s own story regarding his/her finances for purposes of calculating support, and instead, the court can impute income based upon employment history, future earning ability, and educational background. Kessler v. Kessler, 118 A.D.3d 946 (2nd Dept., 2014). In Gorelik v. Gorelik, 71 A.D.3d 730 (2nd Dept., 2010), the court held that child support is calculated based upon the parties’ ability to provide for children rather than their current economic situation.

There are many factors to be considered in imputing income to a party. For example: whether a party voluntarily pursued a lesser form of employment (part time vs. full time), how that party is paying his/her living expenses (i.e., is s/he living rent and/or expense free with a family member?), whether diligent efforts have been made to secure more gainful employment, the local job market, time out of the workforce, health of the parties, and more. The facts and circumstances vary, and a court “is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation” (Rohme v. Burns, 79 A.D.3d 756 ([2nd Dept., 2010]).

If your spouse is attempting to shirk his/her financial obligation to you, call our office to speak to an experienced family law attorney.

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