When a New Jersey court considers whether to award spousal support – or alimony – in a divorce case, one of the factors that judges often look at is how much money each spouse is making. In some cases, they’ll also consider how much each spouse could be making. Courts have the power to “impute” income to a spouse in setting a support award if it believes the person isn’t living up to his or her earning potential. As the New Jersey Superior Court recently explained, however, a judge can’t simply pull numbers from the sky when making these decisions.

Husband was working as an airline pilot when he and Wife married in 2000. He earned between $71,000 and $78,000 per year flying the friendly skies until he was furloughed in 2003. Husband then took a job with a heating, ventilation and air conditioning company owned by his parents. His salary rose to as high as $190,000, but by 2012 he earned only $67,000. He explained in the court proceedings that the company had been struggling financially and that it had laid off a number of its workers.

A trial court eventually ordered Husband to pay Wife an unspecified amount of monthly spousal support. In so doing, it said it would impute an annual income of $125,000 to Husband based on his prior earning history. The judge noted in particular that Husband “can always go back to being a pilot” where there was “no question” that Husband “has the capacity to go back and earn a substantial income.” Even if he remained in the HVAC business, the judge said it appeared that Husband could still make a decent living.

Reversing the decision on appeal, the Superior Court said it could not tell from the record how the trial court arrived at the $125,000 figure. “Imputation of income is a discretionary matter; however, a trial judge must still use evidence to realistically evaluate and determine capacity to earn and job availability.” The Appellate Court in this case, however, determined there was not enough evidence to support the Judge’s decision.

The Appellate Court observed that Husband’s previous income as a pilot was below the $125,000 mark and said there didn’t seem to be any indication that he could earn that amount of money in the HVAC industry. The Court concluded, “Because we cannot discern the basis for the trial court’s conclusion concerning defendant’s imputed income, we cannot evaluate the court’s exercise of discretion in imputing $125,000 yearly income to defendant.”

In divorce cases if parties are unemployed or underemployed we often use employability experts to evaluate and define appropriate income figures.  The Department of Labor may also be an excellent resource to calculate the income of a party that requires imputation.

It is vital that a person considering a divorce or grappling with a related legal issue seek the counsel and advice of a seasoned family law attorney. The New Jersey family lawyers at Helfand & Associates have extensive experience representing clients in a wide range of divorce, child custody, and support cases. Our lawyers work diligently to ease the stress on clients in what can be a trying process by building the strongest possible cases for the people that we represent.  Tanya N. Helfand, Esq. is a Certified Matrimonial Attorney.

Our offices are conveniently located in Whippany, Paramus and New York City. Contact us online, call our New Jersey office at 973-539-1000, or call our New York City office at (646) 213-9053 to set up an appointment with one of our attorneys.

For a consultation call Helfand & Associates at 973-539-1000, 0ur experienced matrimonial attorneys, handling all aspects of Family Law.  Tanya N. Helfand, Esq. is a Certified Matrimonial Attorney, a Mediator and Panelist in the Morris and Essex County ESP Programs.  The firm welcomes your questions and inquiries at [email protected]. We handle cases in Bergen, Essex, Morris, Hudson, Union, Somerset, Sussex and other New Jersey counties.