What to Do When an Alimony Obligor Is Working Below Their Pay Grade

One of the most contentious issues in a divorce can be one spouse’s obligation to continue to support the other. In New York, alimony — formally known as spousal maintenance — is awarded based on one spouse’s needs and the other spouse’s ability to pay, judged primarily by each spouse’s income. But what happens when the paying spouse is not working or is earning less than they possibly could? 

A court may impute income to an unemployed or underemployed spouse based upon their past income or demonstrated earning potential, as measured by salary history, experience, educational background and vocational skills. Imputing income means setting the maintenance award based on what is realistically possible for the obligated spouse to meet. The purpose of this metric is to prevent that spouse from shirking their obligation by deliberately reducing their earnings.

However, the obligated spouse may claim that their unemployment or downturn in income is due to circumstances beyond their control, such as market downturns, industry shifts or health issues. They must provide evidence TO support the claim, including proof of their attempts to secure employment in their field and at a pay level consistent with their vocational background. Medical evidence is required to show inability to work due to health problems or a disability.

The alimony recipient may submit rebuttal evidence, including job listings that show available positions in the paying spouse’s field, testimony from economic experts about the state of the job market or evidence of that spouse's refusal of suitable job offers. The fact that the paying spouse left a high-paying job voluntarily and took a lower-paying one can be a strong indicator of deliberate underemployment.

Note that the court determining alimony also weighs the receiving spouse’s needs. The factors considered include that spouse’s income, assets, earning capacity, age and health. The court will also look at that spouse’s career sacrifices during the marriage and need for job training to reenter the job market. The length of the marriage and standard of living during the marriage are also factors.

Disputes over alimony also can end up in court post-divorce, either if the receiving spouse seeks enforcement of payment or if the paying spouse seeks a modification of the alimony award. The court will allow the same presentation of evidence and may issue various forms of relief. The court may order a temporary adjustment to payments, mandate job training or education for the underemployed spouse or set a review period to reassess the obligor's employment situation and adjust the award accordingly.

Whether you are the paying or receiving ex-spouse in an alimony dispute, a skilled New York spousal maintenance lawyer can provide guidance, help gather and present necessary evidence and advocate effectively for a court decision that reflects a fair assessment of all relevant factors.

Goldberg Sager & Associates in Brooklyn fights for fair spousal maintenance orders for our divorce clients. To schedule a consultation, call [ln::phone] or contact us online.