I should probably discuss first why the court would be imputing income to anyone. For support purposes (either child support or spousal maintenance), one spouse may be unemployed or underemployed. This leads to an allegation by the other spouse that the un/underemployment is intentional and a higher amount should be used for that person’s income before support is calculated. The un/underemployed person might be the person who is to pay child support or maintenance, or it might be the person who will receive child support or who is asking for spousal maintenance.
A California case, In re Marriage of Berger, outlines what is probably the basis for an attribution of income claim in an Arizona case. The spouse alleging that income (or more income) should be imputed to the other spouse must prove both of the following: 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, background and skills will be necessary to prove the first aspect; and an analysis of earning opportunities currently available to individuals with those qualifications is necessary to prove the second aspect.
From the Berger decision:
As Marc points out, and the trial court specifically reasoned in its decision, income cannot be imputed based upon a party’s earning “capacity” absent proof of both ability and opportunity to earn the income on a going-forward basis. As this court recently explained in In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291 [83 Cal.Rptr.3d 72], the burden of proof for imputation of income cannot be met by evidence establishing merely that a spouse continues to possesses the skills and qualifications which had made it possible to earn a certain salary in the past—even where it was undisputed that the spouse had voluntarily left that prior position. (Berger)
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 from the mid-2000’s into 2007 or 2008, with a precipitous drop in income in 2008 or 2009. In a case like that, the spouse seeking support will likely claim that support should be paid based on the pre-2008 income. The payor spouse will claim that that level of income is no longer realistic and that support should be based on actual income in 2008 and later.
Attempts to show the trier of fact that support should be based on the “old” standard of living may be successful; but are they realistic? While showing the trier of fact that the income actually existed in a given profession/ job in the mid-2000’s is powerful evidence, can the trier of fact safely ignore the realities of the post-2008 economy? Arguably, the second requirement of the analysis stated above —- the requirement to show 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 of a person who has been out of the workforce for 5, 10, 15 or more years, that if the nonworking spouse will only look for a job, s/he can easily find one. Past, never-used college degrees are cited, along with evidence of part-time or temporary office work, to show an ability to currently earn full-time income. 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).