The Appellate Division recently issued an opinion addressing the imputation of income to a parent who is not a resident of the United States.  In Ibrahim v. Aziz the parties first came to the US on visitor visas and shortly thereafter returned to Egypt.  A year later, they returned with their child, at which time Ms. Ibrahim got a job as a waitress and the family moved into an apartment.  She alleges that Mr. Aziz opened a retail store at that time, however he denied doing so.  While the parties lived in Egypt, where the cost of living is significantly lower than that of the US, Mr. Aziz worked with his family in their jewelry store and the family maintained a middle class lifestyle.

During their stay in the US, an act of domestic violence occurred and Ms. Ibrahim obtained a Final Restraining Order.  At the hearing, child support was determined.  Shortly after that hearing, Mr. Aziz returned to Egypt and Ms. Ibrahim eventually obtained a divorce, including child support.  Mr. Aziz made an application to the court to reconsider the judgment of divorce for the purpose of reviewing his child support obligation.  He claimed that the court erred in imputing income to him based upon New Jersey wages because he was now living in Egypt, where wages were significantly lower.  The trial court found that Mr. Aziz’s income should be that of what a retail store manager in NJ could earn.  He appealed from that decision.

The basis for his appeal was that not only could he not earn similar or even comparable salary in Egypt as compared to NJ, but also that he was unable to return to NJ to work as he had been denied a visa on several occasions.  Ms. Ibrahim claimed that the parties lived a middle class lifestyle while in Egypt but failed to provide any proof of their lifestyle or provide any proof that Mr. Aziz could return to NJ to work.  Ultimately, the Appellate Division found that the trial court had erred in imputing a NJ salary to Mr. Aziz as he was unable to work in NJ and the income he earned in Egypt was significantly less than that which had been imputed.

When calculating child support payments, the court may impute income to a parent whose income cannot be determined.  The court may also impute income to a parent who has voluntarily become underemployed or unemployed without good cause.  There are four considerations for a court when determining whether to impute income: 1) the employment status and earning capacity of the parent  if the family had remained intact, 2) the reason and intent for the voluntary underemployment or employment, 3) the availability of other assets that may be used to pay support, 4) the ages of any children in the parent’s household and child-care alternatives.

This issue arises quite frequently during divorce when one parent engages in divorce planning and intentionally reduces his/her income so as to avoid a higher support obligation.  Imputation of income for support purposes is also applicable to unmarried individuals who have a child or children in common and support must be determined.