Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May A New Jersey Divorce Court Force My “Ex” To Work To Ensure Alimony and Child Support Payments?

As an expert attorney in divorce and child support matters, I am well aware that a Judge of the Family Part of the Superior Court of New Jersey cannot actually issue a court order that forces an individual to get a job and work.  However, that does not mean that a judge cannot “impute” income upon someone so that they meet their legal obligations as to child support and alimony.  When divorce lawyers and judges deliberate whether to impute income to an ex-spouse or parent, the issue at hand is whether they are “voluntarily underemployed” absent a justifiable reason why (which is very tough to do).  The following analysis, which is one that the divorce lawyers at my law firm utilize in our cases, illuminates New Jersey law.

In Bencivenga v. Bencivenga, Michael and Connie Bencivenga married in 1980, had two daughters, and separated in 1984. The children lived with Michael since then, and Connie had visitation. The dual divorce judgement, entered in 1985, did not require Connie to provide any child support. In 1990, Connie filed for a change of custody. Michael cross-moved for an order requiring Connie to contribute to the children’s support because of change of circumstances. Michael argued that the living expenses for him and the children had increased significantly, and that Connie had an obligation to help out with that burden.

Connie argued that she now had two infant children, two years old, and 3 months old, from her new marriage, and thus could not be required to be reemployed. The New Jersey Appellate Division found that while they could not actually order her to go to work, they could still impute income to her, and impose a fair and equitable obligation to care for her first two children like her obligations to her second two. The court rejected the per se approach of Thomas v. Thomas, that held that the parent’s decision to leave gainful employment to care for the children of a second marriage suspends any duty to care for the children of the first marriage. The New Jersey Appellate division went on to state that clearly, Connie’s second husband did not have any duty to support the children of her first marriage. Still, it could be that a mother’s decision to stay home with her new children was only possible by the ample income or resources of her new husband, and it should not be that the benefits of staying at home with her second family would disadvantage her first family so much.

The 1991 New Jersey Appellate Division case of Aronson v. Aronson, established that receiving an  inheritance could be a valid circumstance to impute income. Although inheritance itself is exempt from distribution under New Jersey Statute 2A:34-23, the income generated by it is no different from income generated by any other asset. Therefore, an inheritance may be used for the purpose of determining changed circumstances to the extent that it constitutes an increase in one spouse’s income and resources. The fact that such income is generated by an exempt asset does not matter. While the income from inheritance may not be subject to equitable distribution, the same income may be considered a factor in alimony awards. Alimony is not a punishment for the supporting spouse, nor a reward for the dependent spouse. It is a right arising out of the marriage relationship to continue to live according to the economic standard established during the marriage. When an financially dependent spouse’s support is in question, the general considerations include the ability of that spouse to contribute to his or her needs. Income generated by a dependent spouse’s inheritance, that income is critical to the issue of that same spouse’s ability to contribute. This will be true whether the spouse chooses to actually receive the income or whether, the income is plowed back into the inheritance. The issue is not actual receipt of funds but access to them. As long as the spouse has the ability to utilize the income source, whether or not he or she actually obtains the money is inconsequential.

A spouse’s earning capacity or prospective earnings could also be used to impute income in support determinations. In Arribi v. Arribi, the Superior Court of New Jersey, Bergen County had to determine if a unemployed spouse may decide to only accept employment in his or her field, and thus remain unable to pay child support. Richard Arribi worked as a staff accountant despite not having a college degree until he was laid off on December 2, 1981, because his employer was about to file bankruptcy. He stated that any future potential employer would most likely want a college degree prior to hiring him. Occasionally, Richard bartended to help him make enough money to make support payments. However he no longer wished to bartend. He stated that the option was no longer available to him, and that he did not want to work as a bartender because his primary field was accounting. At the time of the judgment Richard had been unemployed for eight months, and his unemployment benefits expired in February 1982. He had not made any support payments since. The court relied upon the 1950 Supreme Court case of Bonanno v. Bonanno, which sated that a spouse’s earning capacity and prospective earnings were all proper factors in fixing an amount of support. Applying the precedent the court reasoned that a spouse may not choose to remain in a position of diminished or no earning capacity and still be expect to be relieved of support obligations to his or her family. The court could not sit back allow his child to struggle without support, while he just waited for a job only in his field. His former wife and their son could not afford to wait for him to just find a job a wanted, especially since he had a substantial disadvantage in finding an accounting job because he did not have a college degree. He could not be satisfied waiting for the right job to just appear when he was obligated to pay support for his child even if it meant bartending or working outside his field.

However the 1998 New Jersey Appellate Division case of Dorfman v. Dorfman, established that a finding of voluntary underemployment without good cause is necessary before a court will consider of imputation of income and order discovery of the full financial circumstances of each party. Upon such a finding and after the ordered discovery the judge will then determine whether the changed circumstances justify an imputation of income. In Dorfman, Jeffery and Suzanne, both accountants, were married in 1988 and divorced in 1995. Their final judgment of divorce covered support obligations. In September 1996 Jeffery was fired from his job at an accounting firm after seventeen years. He found a job with another firm, but with a reduced salary of $ 60,000. His original salary was $ 100,000. On July 16, 1997 he filed a motion to reduce his support obligation. The motion judge denied the motion and imputed an annual income of $ 100,000 on Jeffery. The New Jersey Appellate Division found that imputing an income of $ 100,000 was wrong because there was no finding that Jeffery was voluntarily underemployed without good cause. Such a finding is necessary before the consideration of imputing income. Appendix IX, Paragraph 12 of the New Jersey Child Support Guidelines states that the fairness of a child support award is dependent on the accurate and true income of the parents. However, if a court finds that any parent is, without just cause, voluntarily underemployed or unemployed, it may impute income to that parent. 

To learn more, please contact my office today.  Thank you.