Under Massachusetts law, courts consider a number of factors in determining whether to award alimony and if so, the amount and duration of the alimony award. One factor is the income of the parties. But what happens if one of the parties is unemployed or underemployed? How do courts decide what—if any—income to assign to that party?

A judge has discretion to determine what income to assign the parties for purposes of calculating alimony, which is also known as spousal support. It is important to know that a judge is not limited to using only a party’s actual earnings. The judge may also consider a party’s potential earning capacity and may impute a higher income to that party as a result.

In order to impute income to a party, the judge must find that the party is earning less than he or she otherwise could earn with reasonable effort. The judge considers factors such as the training, education, employment history, and health of the party. The judge also considers whether that party is the primary caretaker of children and if so, the age, number, and needs of those children.

At the start of every divorce proceeding, both parties must file a financial statement with the court. This statement requires the parties to disclose all income and assets. This information is key to helping a judge determine income for purposes of alimony. In addition to the financial statements, a judge may also consider testimony of the parties at hearings and any relevant documentation. Such documentation may include W-2 forms, income tax returns, and pay stubs.

In some cases, a judge may use a vocational evaluation. A vocational expert, usually at the request of the opposing party, conducts this evaluation. The expert looks at the party’s past employment and background, potential job prospects in the area, and average incomes in the relevant field. Based on these factors, the expert renders an opinion about whether the party is unemployed or underemployed and what income that party has the potential to earn.

If you and your spouse are contemplating divorce, consider speaking with an experienced family law attorney. The attorney can help protect your rights to alimony, child support, and parental responsibilities.

Source: Massbar.org, “Attributing Income in Massachusetts domestic relations cases,” Charles P. Kindregan and Christina M. Knopf, Dec. 2012