How much are you REALLY worth? What are you actually capable of earning? These questions are at the root of a lot of our spousal support cases. To determine a person’s worth or earning potential, we have to look at a lot of variables – education, work experience, age, physical condition, qualifications, licenses and professional certificates, and so on.
Just because you’re not earning a certain amount of income doesn’t mean that the court can’t find that you’re capable of earning it – and then hold you responsible for it. That’s called imputation, and we see it happen in cases all the time. It works both for our clients and, sometimes, against them, depending on the particular facts involved.
Imputation is something that you should definitely be aware of, especially if your case is going to involve spousal support.
Imputation of Income: “I’ll flip burgers before you get a DIME of support!”
Husbands don’t like to pay spousal support. That fact probably doesn’t come as much of a surprise to you. Many of them think that what they’ve earned during the marriage is theirs, and that their wife should legitimately have no interest in it. (Whaaaaat?!) It’s baffling to me, even after all these years. I want to ask them, “Well, if she doesn’t get spousal support, or your retirement…what DOES she get, according to you?” But I never have, because it’s irrelevant.
If you qualify to receive spousal support, it’s because you deserve it. It’s not like the law is excessively generous, anyway! Before you qualify, you go through a three step process: (1) you demonstrate that you have a need, and he has an ability to pay, (2) you make an argument based on the statutory factors, and (3) you look at the duration of the marriage to determine whether and for how long support might be awarded.
So, if you go through all of that, and you find that the formula (though, a reminder – our formula isn’t binding on our courts, it just puts us in the ballpark of potential possibilities) awards you support – well, good for you.
Only he says he won’t pay support. He’ll die first. Well, that’s maybe a bit melodramatic. He’ll flip burgers instead, that way he won’t earn enough to pay you support, and that would serve you right. Or so he says.
…Can he do that? So, maybe now’s a good time to tell you that you and your husband (in fact, your soon to be ex husband) are no longer members of the same team. You’re not on the same side. In fact, you’re rivals. You’re like the Sharks and the Jets. The Hatfields and the McCoys. The Cowboys and the Redskins. Whatever. He won’t tell you the truth. He will just try to scare you, especially if scaring you means that there’s a probability you’ll settle for less than you deserve.
No, he can’t do that! If he decides to go and flip burgers so that his income will be less and he won’t have to pay you support, the court can impute income to him. That is to say, the court can make him responsible for the amount of income he could earn, rather than what he’s actually earning.
It’s probably not going to be that easy. You’ll have to bring in experts to testify about what he’s worth, to show what his employment history and earning potential could be. But you could make an argument that he should have to pay based off of what he was earning, rather than what he’ll now be earning.
That’s what we call this – voluntary underemployment. That’s different, though, from the fact that he never, throughout the marriage, earned what he had the potential to earn. That’s totally different. In fact, many people choose to earn less than they could. (Certainly any social worker or teacher, given their education and credentials, could get a job earning a whole lot more doing something else!)
Likewise, someone who is chronically unemployed is not necessarily voluntarily underemployed. If he has a pattern of being in and out of work, then the fact that he’s currently out of work might not be shocking. In fact, it might be part of a larger pattern. That might be an entirely different thing than voluntary underemployment.
It’s going to be key to prove that he has a certain earning potential, and a pattern of meeting that potential, and an abrupt stop to it – probably to coincide with the time that he became aware that he might have to start paying spousal support.
Wondering whether your husband is voluntarily underemployed, and you might be able to impute income to him? It’s a good conversation to have one on one with a licensed, experienced, divorce attorney.
Imputation of Income: “Get a Job, Lady!”
Imputation of income can work against you, too. If you’re looking at receiving spousal support, especially if we’re talking a long term marriage (generally, 20 or more years) and permanent spousal support is a possibility, an employment evaluator is also a possibility.
What’s an employment evaluator?
In these types of cases, experts are often employed to help determine what a recipient spouse’s earning potential might be. Sure, you might have been out of the workforce raising children, or you might never have finished your degree – but that doesn’t mean that the court will automatically assume that you have 0 ability to earn any income at all.
It’s a relatively new thing. And, of course, the court can’t require that you get a job. But the court also doesn’t have to assume that you’re helpless and unable to earn anything at all. In fact, more and more often, I see judges who like to hear evidence about what a recipient spouse could earn, if she were to re-enter the workforce.
An employment evaluator (or employment expert) will look at a person, including her education, work experience, physical and mental condition, and so on to determine what kinds of jobs she might qualify to do, and what type of income she could earn. If a judge were impressed with this analysis, he might impute income (meaning, make a recipient spouse responsible for earning a certain amount of income) to her.
Does she have to get a job? No. The judge can’t make her. But he can make it an almost necessary thing, especially if what he imputes to her means that the spousal support she’d receive (which would be reduced by the income she could have if she were working and earning what the evaluator says she could earn) wouldn’t be enough for her to live on.
Worried about having income imputed to you? It’s definitely a good idea to have a one on one conversation with an attorney about it.
For more information about imputation of income, whether it applies to you or to him, give our office a call at 757-425-5200.