How Will My Divorce Matter Be Affected If My Spouse Is Not Employed?

In all divorce matters where alimony or child support is an issue, the income or earning capacity of the parties needs to be determined. If you and your spouse are employed on a full-time basis your annual income can be easily determined. However, if you or your spouse are unemployed (either recent or long-term), under-employed or at some point during the marriage one of you took a leave of absence from your prior full-time position, the issue of imputation of income to one or both of you would need to be addressed.

New Jersey Courts have the authority to, under appropriate circumstances, impute income or determine the earning capacity of an individual whether or not they are actually earning at that level. When the true earning potential of a spouse is at issue in a divorce setting, the parties can either stipulate to an income for the under-employed or unemployed spouse, or they can reference the “Occupational Employment and Wage Estimates for New Jersey.” This information is calculated with data collected from employers in all industry sectors in New Jersey.

As the employment history or qualifications of a spouse may not fit within the table or if they are specifically unique, the table itself may be of nominal value. When there is continued disagreement as to a spouse’s income potential one or both of the parties may retain an employability/vocational expert to evaluate the earning capacity of the unemployed or underemployed spouse. At the outset of the case, the parties can jointly retain one such expert or each can retain their own. There are dozens of such experts statewide who regularly perform these evaluations, issue reports, and subsequently testify at any hearing or trial.

The methods used by these individual experts vary, but most will do a thorough in-person interview. They will obtain information on educational background and academic degrees, past work experience, professional licenses or qualifications and any length of absence from the workforce. They may also suggest additional education or vocational training for the spouse to enable them to earn at their fullest potential. After the evaluation process has been completed, a report will be issued stating the potential range of earnings that the spouse can be anticipated to receive in the immediate future and longer-term. These imputed income figures can be utilized by the Court or attorney to evaluate claims for alimony and to determine the appropriate level of child support.

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