July 22, 2013 | Comments (0)

By Jane Fraier

Unemployment, Underemployment, and Support Orders

The amount paid in a Massachusetts child support or alimony case is largely based upon the respective gross incomes of the parties.  In these support cases, it is understandably frustrating when it appears that the other party is not earning as much as he or she could be earning; potentially impacting the amount of support ordered by the court.  While the court cannot force a person to find employment, in certain circumstances it can penalize a person for failing to find reasonable employment by attributing income.

Massachusetts Attribution of Income Law

The court has the power to calculate child support or alimony using earning potential instead of the actual amount of income a person earns.  Attribution of income requires that the court make specific findings that despite being capable to work, a person is unemployed or underemployed.  It does not require that the person act in bad faith; it simply requires that a person voluntarily earn less then he or she could earn through reasonable effort.  It may be applied to either the person who pays support or the person who receives support. 

No specific mathematical formula is used to determine how much income should be attributed.  It depends upon the unique circumstances of the case.  The judge may set either a finite amount or define an income range.  To arrive at a figure for attributed income, the court considers a party’s education, training, health, and employment history.  In child support cases, the court will also consider the number of children covered by the order and their respective ages and needs.

Attributing Income in Your Support Case

In order to have income attributed in a Massachusetts alimony or child support case, a judge must make specific findings that a party can earn additional income with reasonable effort.  You cannot merely suggest that the other person should make more money to have income attributed.  There must be a reason to believe that a party could work more hours, either at the same job, or that there is another job readily available that would provide more hours or higher pay.   You are not required to point to a specific position or an actual job opening, but you must provide evidence that tends to prove that the person has higher earning potential. 

You will have to show that there is work available within the local geographic area.  In situations when there is a career change, you will have to show that the other party has the ability to work in the area in which he or she is trained and that such a position would yield higher income.  In certain situations, this could require hiring a vocational expert to assess a person’s skills and training, and explain what salary is commonly paid to a person with a similar background.

If you are frustrated by the unemployment or underemployment of the other party in your Massachusetts child support or alimony case, contact Fraier & Maillet.  We will assess your situation and help you determine whether attribution of income is appropriate in your case.



Categories: Divorce

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Attorney Jane Fraier received her B.S. degree in Economics from The College of Charleston and her J.D. from The Dickinson School of Law. Attorney Fraier has practiced law in Northborough since 1992, forming her own family law practice in 1994. She invited Attorney Maillet to join her in 1997, and they formed their firm of Fraier & Maillet in 1999. Attorney Fraier concentrates in the practice of divorce litigation and family law mediation. She is often appointed by the Worcester Probate and Family Court to serve as a Guardian Ad Litem or Attorney for the Child in custody cases, as well as Commissioner in real estate disputes. Attorney Fraier is an active member of the Alternative Dispute Resolution Committee of the Worcester County Bar Association, as well as the Family Law Section, where she has served as co-chairperson. She was elected to the clerkship of Lawyers Concerned for Lawyers, served on the Board of Directors for the MSPCC, and is currently on the Board of Directors for the Calliope Theatre in Boylston, Massachusetts, where she has lived with her family since 1998.

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