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Imputing Income for Child Support in New Jersey

By Theodore Sliwinski, Esquire

It is quite common for the income of one parent - particularly a father - to plummet when marital warfare breaks out. It is also not uncommon for one or both parties to lose a job or to stop working the overtime that had been customarily performed. Child support awards are based on the income of both parties. What happens if the income of the father declines drastically? What should the court do about child support obligations under such circumstances? These vexing issues occur in many family law disputes.

The concept of imputing income to parents who are not actually earning that income is a consideration that is built into the child support guidelines. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, then the court will impute income to that person. The court will impute income to the parent based on: (1)the potential employment that the parent has based on his/her work history and skills; (2) a review of the past work history of the parent; and (3) a review of the Department of Labor Wage Survey.

Do the child support guidelines permit a court to impute income to a parent?
Yes. In the world of divorce law, it is quite common for a husband to undertake efforts to have his income appear as low as possible. When the parties divorce, then quite often the husband will refuse to accept any promotions at work. The husband will work less overtime than he usually worked during the marriage. Moreover, the husband often will have any bonuses deferred. In summary, once a divorce starts, many husbands play all types of games to make it appear that their income is as low as possible. The Child Support Guidelines permit the courts to try to solve the problem of husbands who try to hide their income, who are underemployed, or who are unemployed.

Rule 5:6A, Child Support Guidelines, states that Appendix IX of these Rules shall be applied when an application to establish or modify support is considered by the court. Appendix IX, "Considerations in the Use of Child Support Guidelines," paragraph 12, entitled "Imputing Income to Parents," provides the following:

The fairness of a child support award resulting from the application of these guidelines is dependent on the accurate determination of a parent's net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent...... Pressler, 2005 N.J. Court Rules.

How does a court determine "earning capacity" in an imputed income case?
When a parent is determined to be voluntarily unemployed or underemployed without a good reason, or for the reason of avoiding child support, then the court is authorized to impute income at "earning capacity." The determination of earning capacity is a factual matter, and it is determined by the court based on several factors and evidence. The most common type of evidence is the party's earnings history.

Earnings history, however, may paint an inaccurate picture. A father may not be able to earn at the rate of his last best job because of changes in the job market or changes in the person's health or education. Thus, the court will want to review evidence of the current sate of the person's particular job market.

Specific factors that a court considers in determining whether income should be imputed to a parent and the amount of such income
The court will consider the prior employment status and the earning capacity of that parent. The court will review past tax returns of the parent. The court will ascertain the reason for the parent being unemployed. If the parent has a legitimate reason, then the court will impute less income to him. The court will also determine if there are any other assets available to the parent to enable him to pay child support.

What does the court use to determine how much income to impute to a parent?
The court uses a handbook called the New Jersey Department of Labor Wage and Occupation Survey, which is published every year. The book is very comprehensive, and it provides a breakdown of the statewide average wage for every type of profession. Moreover, the survey is also broken down into individual counties.

The New Jersey Department of Labor also has an excellent website at www.state.nj.us/labor.com. The website allows research on occupational employment and wages throughout the state. It also has tabs for job searches, career explorers, and job training. These can be helpful tools in determining when and how income should be imputed. It may also be reviewed before hiring an employment expert to see whether the cost of such experts can be avoided.

What type of evidence can I submit to the court to prove that my unemployment or underemployment is a true hardship?
If a parent becomes involuntarily underemployed or unemployed then he/she should retain copies of all termination notices, cover letters seeking employment, lists of appointments and interviews, job searches, and a calendar of daily efforts made to find suitable employment. This evidence can prove to a court that the parent was in fact fired or laid off from work. Moreover, this evidence can also prove that the parent has been making a good faith effort to find suitable employment.

Should the court impute income to a stay at home mom when it calculates an alimony award?
The concepts of imputing income are also used when the courts calculate alimony awards. There is no published case in New Jersey that mandates the imputation of income to a custodial parent who chooses to stay at home with the children. When a court establishes an alimony award, if income is imputed to a stay-at-home mother, then the amount of alimony will be reduced. Therefore, in many divorces the issue of whether a stay-at-home mother will have imputed income is crucial. In most cases, the court will impute some type of income to a stay-at-home mother. Another vexing issue is how much income a court will impute to a mother. In my experience, each case is reviewed by the court on a case-by-case basis. The court will consider the following factors when it decides how much income to impute to a stay-at-home mother:
  1. The age, maturity, health, and number of children in the home;
  2. The custodial parent's employment history;
  3. The age and health of the custodial parent;
  4. The availability of an appropriate child-care giver;
  5. The relationship between the expense of childcare and the net income of the custodial parent;
  6. The cost, if any, for transportation, etc., required for the custodial parent to have imputed income;
  7. The custodial parent's motivation or reasons for being at home; and
  8. The adequacy of available resources if the custodial parent remains at home.

My ex is the ultimate deadbeat. Every other month he/she files a frivolous motion to reduce the child support obligation. What evidence can I present to the court to prove that he is acting in bad faith and that he has an excellent earning capacity?
The following types of evidence may enable you to prove to a court that a parent is underemployed or that his/her unemployment is made in bad faith:
  1. Past income information;
  2. Past employment history;
  3. Education history;
  4. Documents or awards related to education or work achievements;
  5. Documents demonstrating that previous employment was voluntarily terminated.

What evidence can I submit to the court to prove that my difficulties in finding employment constitute a "change in circumstances" to justify a reduction in my child support?
The following types of evidence may enable you to prove to a court that you have a legitimate case for a child support reduction based on a "change of circumstances":
  1. Any documents that demonstrate that the termination of a prior job was involuntary. These documents may include proof that the father was fired or that he was forced to leave his job for a medical reason(s).
  2. Any documentation of efforts to seek substitute employment. This includes job applications, rejection letters, e-mails that verify a vigorous employment search, and newspaper ads.
  3. Any documentation that establishes that your job skills are outdated for a job similar to the one that was terminated.

I lost my job as a software engineer. Unfortunately, all of these types of jobs are now available only in India. I am now serving slurpees at the local Seven Eleven. Can I now make an application to reduce my child support?
The answer to this question is uncertain. Courts have consistently rejected requests for a child support modification that are based only on a temporary "change of circumstances." Thus, the court will consider the issue of whether the parent is obligated to find other employment that would enable them to pay their child support. The court will want to make inquiries as to whether any other higher-paying jobs are available. The court will want to ascertain why you lost your job as a software engineer. Finally, the court will want to determine if there are other available jobs in your field.

In my experience, most courts will schedule a plenary hearing to determine if the parent has made a good faith effort to find another job at a comparable salary. Many courts will grant a father a child support reduction only for a short period, perhaps reducing child support for only three months and then recalling the case. The court will then determine if the father is making a good faith effort to find new employment at a comparable salary.

If the court is not satisfied that the father is making a good faith effort to find suitable employment, then the court may increase the child support to the original amount. If the father still has not found suitable employment, the court may continue the child support reduction for an additional short-term period.

Theodore Sliwinski, Esquire, dedicates his practice to providing quality and very affordable legal services to the public. He believes that everyone should be able to afford quality legal services. He has twenty-one years of legal experience and has handled hundreds of divorces, bankruptcies, traffic violations, and criminal and civil cases. He is headquartered in central New Jersey. Affordability, accessibility, responsiveness and personal commitment is what every client receives.

Mr. Sliwinski can be contacted by phone at (732) 257-0708 or
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