New Jersey law provides that both parents must pay basic child support plus certain add-on expenses. While a Court or the parties may decide how much each parent pays initially, that amount may later be modified if a party has experienced “changed circumstances,” which include job loss or obtaining a higher paying job. Whether a modification is warranted is based upon a fact sensitive analysis by the Court. When the Court finds that a party is voluntarily underemployed or unemployed without just cause, the Court has the discretion to impute income to that parent based on certain criteria. A recent appellate decision illustrates this point.

In Posner v. Zimand, the parties’ Marital Settlement Agreement provided that their children would be enrolled in a Jewish Orthodox school and Jewish Orthodox camp, and costs would be shared equally. The children’s father did not pay his share and the children’s mother moved to enforce the agreement and compel payment of the moneys owed. The motion Court ruled in the mother’s favor. The father appealed, contending that the motion Court erred in imputing more income to him than he made at that time.

The Appellate Court affirmed the trial judge’s decision noting that “[i]mputation of income is a discretionary matter not capable of precise or exact determination[,] but rather require[s] a trial judge to realistically appraise capacity to earn and job availability.” In determining whether income should be imputed to a parent and the amount of such income, the Court should consider:

  • what the employment status and earning capacity of that parent would have been if the family had remained intact;
  • the reason and intent for the voluntary underemployment or unemployment;
  • the availability of other assets that may be used to pay support;
  • the ages of any children in the parent’s household and child-care alternatives;
  • the parent’s work history, occupational qualifications, educational background, and former income at their usual or former occupation;
  • the prevailing job opportunities in the region; and
  • the average earnings for that occupation as reported by the New Jersey Department of Labor.

The Appellate Court ultimately found that although the motion Court did not explicitly address all of the above factors, there was substantial, credible evidence supporting the motion Court’s decision to impute more income to the children’s father than he was actually making at the time.

If you are the payor of child support and are having difficulties meeting your obligations, it is important to consult an attorney for assistance with preparing your case. Likewise, if you are the recipient of child support, but have not been receiving the proper amount, it is essential to consult with an attorney regarding your rights.

Contact us to learn how we can assist you with negotiating, mediating or litigating your child support matter.



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