After a divorce in which alimony is awarded, or in a divorce where alimony is in dispute, the situation can arise where the paying spouse claims an inability to meet payments due to unemployment or lower wages. While the claim may have merit, it is also possible that the paying spouse has deliberately chosen to work reduced hours, was fired for cause or is in other situations which are temporary in nature. In New Jersey, the courts have the authority to impute income to a spouse who is found to be voluntarily unemployed, underemployed or discharged for cause. This means that the court assesses the spouse's potential earning capacity rather than their actual earnings to ensure fairness in the fulfillment of alimony payments. These situations also require the change to be permanent, not temporary. 

If a paying spouse is delinquent, the alimony recipient can file a motion in court for the enforcement of the alimony order. The paying spouse may argue that they have become unemployed or are unable to find employment at their former level of income, or they may make the token argument of “there is no overtime work available.” The person seeking the reduction in support is obligated to provide sufficient records to document that the change in employment or reduction in income is a permanent and involuntary change of circumstances. 

Under N.J.S.A. 2A:34-23, New Jersey courts are empowered to consider various factors when determining whether to impute income to a spouse. These factors include the individual's work history, occupational qualifications and educational background. There must also be sufficient proof of a comprehensive job search and of prevailing job opportunities in the region. This comprehensive analysis helps the court ascertain if the spouse is not working to their full earning potential deliberately or due to circumstances beyond their control, if the situation is temporary or permanent and what if any modifications to support should be granted.

In consideration of the payee’s ability to earn, the courts may review the spouse’s former income levels or the average earnings for their occupation as reported by the New Jersey Department of Labor (NJDOL) wage compendium. This comparison provides a benchmark for what the spouse could potentially earn, based on their skills and the labor market conditions.

In cases where the paying spouse continues to default on their alimony obligations despite the court's orders, further enforcement measures can be taken. These may include wage garnishment, where a portion of the delinquent spouse’s earnings is directly transferred to the recipient. Other legal actions can involve compelling the sale of assets, placing liens on property owned by the non-compliant spouse and revoking driver’s license and/or professional licenses in the most severe cases. An attorney experienced in alimony matters can help you take effective means to pursue your interests.

The Law Offices of Kelli M. Martone, located in Haddon Heights, represents clients in family law matters throughout Camden, Gloucester, Cape May, Atlantic and Burlington counties. Call us at 856-432-4587 or contact us online to arrange a consultation.