Alimony Reduction Through Imputation Of Income Is In Court's Discretion

In the recent New Jersey Appellate Division case, Palestrini v. Palestrini, the Plaintiff, Carl Palestrini appealed from a Court Order establishing his alimony obligation and asked that the court impute income to his ex-wife, Defendant, Joann Palestrini, whom he claimed remained purposely underemployed as a means to increase her alimony award. The parties in this case were divorced in July 2012 after approximately nineteen (19) years of marriage. They were divorced pursuant to a dual judgment of divorce which incorporated a property settlement agreement (PSA). In the PSA, it was specified that the Plaintiff was, at that time, on unemployment, but required him to pay $200 a week in permanent alimony which was to be subject to an annual review to accommodate for the possibility that he would obtain a new job and there would be a resulting increase in his salary. On August 20, 2012, the Plaintiff's attorney informed the Defendant that the Plaintiff had gotten a new job with an annual salary of $65,000 a year and attached a pay stub which indicated that the Plaintiff had actually started to work at this job two days before the dual judgment of divorce was executed. The Defendant then filed a Motion with the court to increase her alimony award to $324.87 a week based upon the Plaintiff's new increased salary and based upon her part-time and varying salary of $11.00 an hour. The Plaintiff submitted a Cross-Motion arguing that the Defendant was earning approximately $20,000 a year at the time of their divorce and was subsequently choosing to be underemployed necessitating the court to impute her income back to $20,000 a year. After a hearing, the Family Court judge awarded the Defendant $325.00 a week and rejected the Plaintiff's requested relief. The Plaintiff appealed from this decision asserting that the court mistakenly exercised its discretion by failing to impute full-time income to the Defendant. The Appellate Court affirmed the decision of the Family Court. In its holding, the Appellate Division noted that it was required to defer to the Family Court's fact-finding because of the court's "special expertise" in the area of family law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Further, it held that: "imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). There was no evidence that the Defendant was voluntarily underemployed and a finding of voluntary underemployment "is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). According to the Defendant's Case Information Statement, she had a history of working part-time and the Plaintiff failed to provide the court with information regarding the Defendant's education, training, or employability that would have provided a basis to prove purposeful underemployment. The court concluded that the Plaintiff's remaining arguments lacked sufficient merit to warrant a discussion in a written opinion pursuant to Rule 2:11-3(e)(1)(E). If you anticipate that you may want to petition the court for a modification of your alimony award or may want to seek to impute income to your ex-spouse for the purposes of re-calculating an alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, divorce or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Can Purposeful Underemployment Affect Child Support Obligations?

Recently, the NJ Appellate Division rendered a decision in Oliver v. Oliver, a post-judgment matrimonial case regarding the issue of modifying a parent's child support obligation. The parties in the case were married in 2002, separated in 2009, and divorced in 2010. During their marriage, the Defendant ex-wife, gave birth to a daughter who is currently 12 years old. Before their divorce was finalized the Defendant worked in the collections department for a private company. She claimed that she lost her job in 2009 because she was frequently late. The Plaintiff, her ex-husband, alleged that the Defendant purposely lost her job to place herself in a better position to get increased child support. According to an order issued at the time of the parties' divorce, the Plaintiff was required to pay $115 per week to the Defendant in child support. At that time, the aforementioned sum was based upon the Plaintiff's salary of $100,100 per year and the Defendant's income of $68,333. In 2012, the Defendant filed a motion with the court requesting an increase in child support because she had lost her job for a duration of time and when she finally got a new job in collections she was only earning $30,000 annually. The Plaintiff answered the Defendant's motion, citing that the court should still use $68,333 as the Defendant's income because she had intentionally lost her job and failed to show that she even tried to get a job making a similar salary. The Family Court granted the Defendant's request for an increase in child support and increased the Plaintiff's weekly obligation from $115 to $181 based upon her reported annual salary of $30,000. The Plaintiff appealed this decision citing that the court failed to consider his claim that the Defendant intentionally did not seek or accept work for a long period of time and then accepted a position making substantially less than her potential. The Appellate Court reversed the Family Court's decision and remanded the case back to the court to provide parties with a full explanation of its finding and legal conclusions. According to the Appellate Court, Rule 1:7-4(a) specifies that "the court shall . . . find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300-01 (App. Div. 2009). In this case, the Appellate Court found that the Family Court did not make specific findings regarding the Plaintiff's argument that the Defendant was intentionally underemployed. Disputes regarding child support can be of the most important in family law because child support money is critical for the welfare of the children of divorced parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about child support, alimony, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Divorce Does Not Always Result In What You Expect

In a divorce case in which the Husband,a contractor with the ability to receive his income in cash, the Judge found him to be untruthful about his earnings and the defendant Husband was ordered to pay the wife $500 per week in alimony and an additional $217 per week in child support for 2 children as well as the wife's counsel fees of $15,782.45. The parties were married for 19 years and the Morris County Superior Court Judge hearing the matter found it to be a permanent alimony case. In Gentile v. Gentile, the husband appealed the decision on the basis that the wife should have been imputed income in excess of $21,000 and permanent alimony should not have been awarded. Throughout the last 5 years of the marriage the husband earned an average of $90,000 per year but cited the economic downturn as a reason for lack of work around the time of the parties' divorce. The wife worked only part-time and sporadically during the marriage. The judge found both underemployed and imputed income of $100,000 to the husband and $20,800 to the wife. The judge specifically found the husband was intentionally underemployed at the end of the marriage to avoid child support and alimony obligations. The husband reported expenses of $3,405 per month, including rent to his brother, and the judge decided the husband's expenses were actually $2,000 per month. The court relied on the husband to show the wife could not earn more than $20,800 per year, rather than relying on the wife to show that was all she could earn. The judge used the factors in N.J.S.A. 2A:34-23(b) in determining that alimony should be permanent. The only asset for equitable distribution was the husband's annuity worth $106,733. Once the Judge divided the annuity in half and ordered the Husband to pay tax preparation fees, his share of the children's dental expenses, the Wife's share of a tax refund for 2 years, reimbursement to Wife for money he withdrew from the annuity, child support arrears and the Wife's counsel fees the Husband received nothing from his own annuity. The New Jersey Appellate Division affirmed. If you are considering a divorce, it is important to understand what is involved and the likely outcome in your matter. You should always consult with an experienced family law attorney when considering divorce to ensure you know your options and your rights are protected. For more information about alimony, child support, custody, visitation, post-judgment modification or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Child Support Modifications Are Not Retroactive in NJ

In a post-judgment motion for modification of child support the court imputed plaintiff, a nurse with no demonstrated disabilities income of $65,000, for purposes of calculating child support and imputed defendant, a painter, $35,000 for purposes of calculating child support. The court modified child support according to the incomes imputed and made it retroactive to a date preceding the filing of defendant's modification motion. The New Jersey Appellate Court reversed the retroactive modification as contrary to New Jersey Statue 2A:17-5:6.23a which limits the modification of child support to the date upon which a motion for modification is filed. The court also reversed the imputation of income to defendant because it was not supported by his case information statement. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.