Sheilah O’Donnel tells herself that her new home, a townhouse in a development in Chevy Chase, Md., just a stone’s throw from a Safeway, isn’t really all that bad. Sure, it’s near a gas station. And the front window, with its cheerily upholstered cushions, overlooks a dreary parking lot. And yes, it’s kind of small

I have previously blogged about the permanent alimony and lifestyle aspects of the Gnall case decided by the Appellate Division last week.  Gnall had another interesting issue, that is, imputation of income.  More specifically, the case discussed whether income should be immediately imputed to a stay at home parent.

In Gnall, the trial court

Reading the recently unpublished (not precedential) Appellate Division matter of Connaughton v. Connaughton  brought me back to my days of toiling as an account executive at an advertising agency in Manhattan. Our team often worked long hours and frequently traveled for client meetings, commercial shoots, and the like.

Advertising also was and remains notorious for forcing account and creative executives to switch from agency to agency in order to make more money over time.  For instance, a person who just joined an agency may be making tens of thousands of dollars more than a similarly situated person who started with and remained at the same agency throughout their career for no other reason than that the newly hired person came from a different agency.

The income situation in Connaughton was interesting in that Brian’s historical income increased as he frequently switched jobs and moved up the proverbial ladder.  Similarly interesting was Elizabeth’s income growth, which stalled once she left the workforce and gave birth to the parties’ child.  Specifically, the parties married in 1995, and a year later, Brian obtained a job with J. Walter Thompson while Elizabeth commenced a period of freelance work that lasted throughout the remainder of the marriage.


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Robert A. Epstein, an associate in our Family Law Group resident in the Roseland, New Jersey office, authored the article, Imputing Income to a Non-Working Spouse During the Pendente Lite Period: A Violation of the Status Quo or a Practical Step Toward the Reasonably Comparable Lifestyle?, for the November 2012 edition of The New Jersey

I recently heard a person say that their spouse believed his alimony and child support would be based solely on his salary.  I am sure he would like that but that statement is wishful thinking at best.  If he was correct, several hundred thousand dollars each year would be his alone and not considered for support.  Aside from potentially being unfair, it is not the law.

In fact, in New Jersey, the definition of income from support purposes includes all sources of income.  In fact, the Child Support Guidelines includes, but is not limited to 23 possibilities for income, as follows:

a. compensation for services, including wages, fees, tips, and commissions;
b. the operation of a business minus ordinary and necessary operating expenses (see IRS Schedule C);
c. gains derived from dealings in property;
d. interest and dividends (see IRS Schedule B);
e. rents (minus ordinary and necessary expenses – see IRS Schedule E);
f. bonuses and royalties;
g. alimony and separate maintenance payments received from the current or past  relationships;
h. annuities or an interest in a trust;
i. life insurance and endowment contracts;
j. distributions from government and private retirement plans including Social Security, Veteran’s Administration, Railroad Retirement Board, deferred compensation, Keoughs and IRA’s;
k. personal injury awards or other civil lawsuits;
l. interest in a decedent’s estate or a trust;
m. disability grants or payments (including Social Security disability);
n. profit sharing plans;
o. worker’s compensation;
p. unemployment compensation benefits;
q. overtime, part-time and severance pay;
r. net gambling winnings;
s. the sale of investments (net capital gain) or earnings from investments;
t. income tax credits or rebates (excluding the federal and state Earned Income Credit and the N.J. homestead rebate);
u. unreported cash payments (if identifiable);
v. the value of in-kind benefits; and
w. imputed income


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Though you don’t see them much anymore, some times Marital Settlement Agreement contained escalator clauses which, in effect, provided for automatic increases in alimony or child support.  Some times they were a fixed percentage per year. Other times they were tied to the cost of living/Consumer Price Index. 

In the unreported (non-precedential) case of Burroughs v. Burroughs

In the last several years, I have noticed a shift in the attitudes of judges and lawyers towards women who have spent a long term marriage working within the home raising a family. In New Jersey, there are thirteen factors which are considered when determining alimony, but our case law provides that two of the more important are

I have heard on more than one occasion from a client that their spouse or ex-spouse isn’t earning nearly as much income as he/she may be capable of earning.  This statement is often made in the face of an alimony or child support calculation.  What happens if this is in fact true?

During the divorce process one of the more common ways to determine how much income a spouse can earn is to have them evaluated by an employability expert.  Now if you look up “employability expert” as a qualified profession or a course of study available in a college course book, I doubt that you would find it in there.  Like many other things, employability experts arose out of a need in the legal profession to have an individual with the proper experience, knowledge and background meet with an individual and assess their skill set to determine what kind of employment they may be eligible to obtain. Viola- a new niche profession is born!

So what about after a divorce is finalized and an ex-spouse is either unemployed (because of the economy, the job market or they simply refuse to work) or is underemployed (earning less than they had previously earned either by choice or no fault of their own) and a support obligation exists?  What does the court then rely upon when addressing the recalculation of a support award?


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