Attribution of Income in Trying Times

by Annette Burns on August 23, 2009

What’s necessary to prove imputed income for a spouse, either for purposes of child support or spousal maintenance?

 A recent California
case outlines what is probably the basics for such a claim in an Arizona
case.   The spouse alleging that income
should be imputed must prove both of the follows:  the ability to earn a certain income, and the
opportunity to earn that income on a going-forward basis.  An analysis of the spouse’s qualifications is
necessary to prove the first aspect; and an analysis of earning opportunities
currently available to individuals with those qualifications is the second
aspect.    

It would appear that the second requirement is what is most
often ignored, especially in the current economy.     Every family law attorney has seen cases
of a spouse (often the primary or sole income-earner for the family) with an
income level that remained fairly stable for 2004, 2005, 2006 and possibly into
2007, with a precipitous drop in 2008 and into 2009.  In a case like that, the spouse seeking
support will likely claim that support should be paid based on the 2003-07 income. The payor
spouse will claim that level of income (and thus support) is no longer
realistic, and that support going forward should be based on actual income in 2008-09.

Attempts to show the trier of fact that support should be
based on the “old” standard of living are often successful; but are they
realistic?      While showing the trier
of fact that the income actually existed in a given profession/ job in the
early 2000’s is powerful evidence, can the trier of fact safely ignore the
realities of the 2008-09 economy? 
Arguably, the second requirement of the analysis stated above —- the
requirement of showing that earning opportunities at that level currently exist
—- cannot be easily met in this economy.

The same analysis must be met by a payor spouse who claims
that the spouse to be supported can earn a living at some level which is not
based on prior income.    How many times
have we heard from the payor spouse (Husband), that a Wife who has been out of
the workforce for 5, 10, 15 or more years, can easily find a good-paying position if she will only look for one.    Past,
never-used college degrees are cited, along with evidence of part-time or
temporary office work, as showing the ability to currently earn full-time income at a
high level.  While a nonworking spouse’s
qualifications may be impressive on paper (if the lack of recency is ignored),
it must still be proven that those qualifications equate to jobs that are
currently available on a going-forward basis for that individual.

In re Marriage of Berger (2009), citing In re Marriage of
Mosely
   165 Cal.App.4th 1375,
82 Cal.Rptr.3rd 497 (2008).

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