The issue of interim support payments comes up in almost every divorce matter. The law requires that the so-called “status quo” that existed during the marriage be maintained to the extent possible, but what does that even mean when there may now be two households to support, litigation expenses, and other costs that were never a part of the marital lifestyle? Who is going to pay the mortgage, the utility and car bills, and what about personal expenses for each party and the children, if there are any?
The analysis is by no means an exact science, as each spouse is required to complete a form entitled a Case Information Statement, which details the parties’ incomes, assets, liabilities and, perhaps most infamously, monthly budgets. Almost inevitably, the trial judge will be presented with budgets from the payor spouse that are as conservative as can be in an effort to pay as little as possible, while the payee spouse will try to present a lifestyle that is as liberal can be in an effort to receive the highest payment possible.
While the Family Court is often presented with limited information and competing affidavits upon which to base an interim support award, one critical question that comes into play is what incomes should be utilized for each party. For a W-2 wage earner with a consistent annual income, the answer is easy. For a business owner who may filter personal expenses through his or her business, the answer is more complicated.
How about the issue of what income to impute to a dependent/payee spouse who, perhaps, did not work for a period of time during the marriage or leading up to the interim support application now before the Court? This was the issue in Maine v. Maine, a recent unpublished trial court decision that follows on the heels of the Appellate Division’s 2013 decision in Gnall v. Gnall. After conducting a detailed analysis, the court held:
[w]hile additional income may be imputed to a party at the beginning of a case, the analysis logically and equitably extends beyond mere referral to the New Jersey Department of Labor statistics for “average” incomes in certain professions and localities. Rather, factual circumstances may require consideration of other important pendente lite factors as well, including a party’s need for a reasonable period of transition to seek and obtain employment matching his or her skill set, education, and experience (with a footnote expounding that “This point is particularly relevant when a party has education and training in a field, but little or no actual work experience in same.”)
The parties were married for 20 years before Wife filed for divorce. Shortly thereafter, she filed a motion for interim alimony pending trial and a conclusion of the divorce proceeding. Wife represented that Husband was the primary wage earner during the marriage, and Wife was a part-time school custodian earning approximately $10,000 annually.
Husband argued that Wife should be “imputed” $32,400 in gross annual income, a substantially higher income than the $10,000 she was earning because, towards the end of the marriage with the Husband’s acquiescence, Wife used joint marital funds to attend and graduate from a medical assistant training program. The Husband relied on the New Jersey Department of Labor statistics for a medical assistant’s annual income in support of his position. Husband also argued that while Wife worked briefly as a paid intern during her training, she never obtained further work in the field. Instead, she voluntarily obtained and maintained employment as a part-time custodian. Wife responded that she tried, but failed to successfully obtain a position in the medical assistant field, which was why she argued she was working as a custodian. As a result, Wife indicated that it was fair that she be imputed her custodian’s salary on a full-time basis, which projected to approximately $23,000 annually.
In addressing the income imputation issue to Wife, the court noted:
In the context of a pendente lite support application, a court has reasonable discretion to impute income to a supported spouse by considering what he or she can reasonably earn with due diligence, irrespective of whether the supported spouse is actually earning such income at the time.
Following in Gnall’s footsteps, the court noted that while it could refer to the Department of Labor wage statistics to impute income, but that such a limited review failed to consider whether the subject spouse could instantly earn such income, without any reasonable period of transition at the start of a divorce proceeding. The court added:
Such period of transition may not only be fair and reasonable, but financially critical if a party is expected to seek and find an open and available position paying an “average” or even “beginning” salary. The potential inequity of imputing income without any reasonable transition time becomes even more pronounced when, as in the present case, the party has little or no recent work experience in a particular field, notwithstanding prior training or education.
. . .
Therefore, for pendente lite purposes at the start of divorce litigation, a spouse with little or no recent work history may equitably need a reasonable period of time to convert imputed income into actual income by searching diligently, in documented fashion, for employment and a salary where he or she can earn anywhere near what an average or even beginning employee may earn in a particular position.
In other words, if a court is going to impute income without a reasonable transition period in connection with same, there must be an evidentiary basis for doing so, which may be difficult when contained in competing certifications in support of a motion addressing interim support issues. Interestingly, the trial judge noted that a person who loses a job cannot just find a replacement position with the “snap of the fingers,” although the burden upon such a person to procure a support modification under such circumstances seems far more difficult. As a result, the court posed the following questions for consideration:
A) Is it reasonable and realistic to expect one to immediately obtain a particular job in a specific field, and if so, at what level of compensation (“average” vs. another level, based upon experience, education, training and nature of skill)?
B) How long has the party been out of the work force?
C) What documented efforts has the party made to find work, and in what fields and positions?
D) What compensation, if any, has the party personally and historically earned in a particular position or field, and for what duration of time?
E) Is retraining reasonably necessary, and what is the estimated time and expense involved?
F) Does the party have daycare responsibilities for minor children, making an immediate return to full-time employment financially impractical after considering the estimated cost of work-related day care services?
Based on the above analysis, the court imputed to Wife, on an interim pendente lite basis, $23,000 in gross annual income, which equated to her present part-time income imputed on a full-time basis. The court also provided Wife with a 4-month transition period to demonstrate documented efforts to seek and obtain employment at a higher level of income as a medical assistant or otherwise. As is always the case, such determinations were subject to modification after further discovery, presentation of proofs, and the like.
The court’s analysis is consistent with that found in Gnall. Whether one agrees or disagrees with the analysis is likely going to depend on whether that person is the supported or supporting spouse. Ultimately, the court appeared to reach a middle ground, finding that both parties were right and wrong in their respective positions.
Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office. He can be reached at (973) 994-7526, or email@example.com.
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