Thankfully, probably not. These decisions are made on a case-by-case basis, but Courts will generally set support obligations as if both parties are working at maximum capacity, even if that’s not true. When either spouse/parent is underemployed or unemployed without just cause, the Court has the ability to “impute” income. Our Appellate Division has held that a person’s capacity to earn should be “theoretically activated” when calculating both child support and alimony. The Court has every right to realistically appraise someone’s potential earning capacity instead of relying solely on their actual income.

That authority is codified under the New Jersey Child Support Guidelines, which state as follows:

If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:

  1. impute income based on potential employment and earning capacity using the parent’s work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent’s former income at that person’s usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);
  2. if potential earnings cannot be determined, impute income based on the parent’s most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent’s actual income); or
  3. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the prevailing New Jersey minimum wage.

In determining whether income should be imputed to a parent and the amount of such income, the court should consider: (1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent’s household and child-care alternatives. The determination of imputed income shall not be based on the gender or custodial position of the parent.

These legal precepts equally apply when establishing a party’s obligation to pay alimony.

As held in the 1982 Chancery Division decision of Arribi v. Arribi: “[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one’s family.”