How Does Unemployment Affect Spousal Maintenance Obligations?

In New York, spousal maintenance after a divorce (informally known as alimony) is calculated based in part on the paying spouse’s reported income from wages and other sources. But what happens when that spouse becomes unemployed or is working below their earning capacity?

Courts in New York have the authority to impute income to a paying spouse under certain conditions, such as when the spouse appears to be voluntarily unemployed or underemployed. Imputing income means assigning an income level based on potential earnings rather than actual earnings. Potential earnings are determined by work history, education and other indications of employment capability.

A dispute between the spouses over maintenance obligations can end up in court if the recipient spouse seeks enforcement of the original order and/or the paying spouse seeks a modification based on having diminished earnings.

A court may decide to impute income to the paying spouse if it finds any of the following:

1. The spouse has intentionally reduced their income to avoid maintenance payments. 
2. The spouse is not making full use of their skills, education or training, thereby working below their earning capacity.
3. The spouse has not made adequate efforts to find employment that matches their qualifications.

By contrast, a court is unlikely to impute income if it finds the ex-spouse is unable to work due to disability or another legitimate reason beyond their control. 

Both spouses are allowed to present evidence concerning the paying spouse’s potential earnings. The court may consider evidence that economic circumstances have made it impossible for the paying spouse to find a position suitable to their level of education, skill and experience. That spouse must prove they have made a diligent search for employment at that level.

A recipient spouse can submit rebuttal evidence such as a job market analysis demonstrating that suitable jobs with higher pay are available. It may also be possible to obtain, through the court discovery process, financial records indicating that the paying spouse has other sources of income.

After a hearing, at which each party may be represented by a spousal maintenance attorney, the court will determine whether and how the maintenance order should be modified to reflect imputed income.

If the paying spouse is in default, the recipient spouse can petition for enforcement of the maintenance order. A paying spouse who fails to comply may be found in contempt of court, which can lead to penalties including fines or jail time. The court may also order an income execution, directing the payer’s employer to deduct the maintenance amount directly from wages. Enforcement measures can include seizing bank accounts, tax refunds or other assets of the payer. 

Whether you are the payer or recipient of spousal maintenance, the attorneys at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, NY can protect your rights. We serve clients throughout Long Island. To learn how we can help you, call 631-360-0400 or contact us online.