Attribution of income is a commonly disputed topic in child support cases. When the payor of child support is unemployed or underemployed, meaning that, their current job is one that they are significantly overqualified for, the court may attribute additional income to that individual for purposes of child support calculations. A party’s current income is the preliminary point for calculating a support order and the attribution of income is an important exception to the rule, as it allows the recipient to be compensated equitably. Massachusetts Child Support Guidelines Section IE(2) states: “Income may be attributed where a finding has been made that either parent is capable of working and is unemployed or underemployed.” One key Massachusetts state case, Flaherty v. Flaherty, describes that attributing income to the supporting party is generally appropriate when the party is capable of working and is unemployed, underemployed, or is working a job, trade, or profession that is outside the scope for which they possess training for. Making the ‘attribution of income’ argument is a strategy we employ at Ryder & Phelps, when without such attribution, our client would otherwise not receive equitable support. Our firm has been successful in making this argument, although it is highly dependent on the facts and circumstances surrounding the case.
Attribution of income Section IE(2) states that: “If the Court makes a determination that either parent is earning less than he or she could earn through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its child support order.” Determining how much effort rises to the level of “reasonable effort” is also within the judge’s discretion. Section IE of the Guidelines lists education, training, employment history, and availability of employment at the attributed income level, as key considerations when evaluating an obligor’s efforts at obtaining employment. Courts have interpreted these factors to include:
- Number of jobs applied to
- Frequency of which they are sending job applications
- Length of time they have been searching for a job
- Attendance at interviews or meetings for prospective jobs
- Whether they have enlisted the help of their professional network of contacts
- Whether they worked with a recruiter
- Attendance at career fairs
- Current job market prospects
Income may be attributed regardless of whether the obligor is voluntarily or involuntarily un/underemployed. However, in cases where the un/underemployment is voluntary, this factor leans much more heavily towards a greater attribution of income. The Massachusetts case Emery v. Stutevant explains this may occur when a party has taken an early retirement or has chosen to pursue work in a totally unrelated field at a substantially reduced salary, despite availability of higher-paying jobs commensurate with the party's work experience. In such voluntary career change cases, attribution based on a party's prior earning capacity has been permitted when that party has voluntarily left his or her job and has thereafter failed to make reasonable efforts to secure comparable employment.
At Ryder & Phelps, we recently assisted a client in her divorce case and successfully made the argument in favor of attributed income. With this advocacy, our client is receiving an equitable amount of child support to help support her children, despite her former spouse’s underemployment.
The father previously held several jobs earning upwards of $150,000.00 per year and voluntarily left those to pursue a new profession earning $35,000.00 in the early stages of a divorce. The husband had no prior history nor interest in working in this new field. If his new earnings were to be used as income for child support calculation, the support order would have equaled $833.00 per week and if the previous earning history were to be used for calculation, then the order would have equaled $258.00.00 per week. The judge ordered the support order to be $324.00 per week based upon the arguments that the Husband was voluntarily underemployed.
Parental underemployment may have detrimental consequences regarding the long-term care of children. It is in the children’s best interest to be supported by two fully employed parents, and the judicial discretion to impute additional income when calculating the support order, aligns with this policy goal.
It should also be noted that alimony support orders, like child support orders, may also attribute income to the obligor. Mass. Gen. Laws c. 208 §53(f) permits the court to attribute income to parties unemployed or underemployed when determining their incomes for alimony.