Divorce Myth #8* – I do not have to pay support if I am not working
The short answer is that the fact that you are not working does not automatically equate to a suspension or termination of your obligation to pay support. There are a number of different scenarios that touch upon this issue.
First, does the fact that you are not working impact the initial calculation of support? The Court can not make you obtain employment. However, the Court, when calculating alimony and child support, can impute income to a non-working party. This idea of imputing income was in response to people who were quitting their higher paying jobs in order to reduce their support exposure. For example, a rocket scientist quitting his job to deliver pizza for minimum wage. However, the idea of imputing income has been extended to include situations where someone involuntarily loses their job or where someone is earning less income than in prior years. When deciding the amount of income to impute, the Court will look at historical earnings, employment history, federal and state wage information, educational background, and employability. The amount of income that is imputed will be utilized in the alimony and child support calculations.
Second, what about a situation where you are already under a support obligation based upon a certain income level and you lose that employment? The recently revised alimony statute provides a list of factors that the Court must examine when addressing an application to review alimony based upon loss of employment. There are separate statutory provisions for people who are self-employed. Importantly, the statute requires the loss of employment to be at least ninety days before an application can be filed. This specific provision was no doubt included to address the question of what loss of employment should be considered "temporary" in nature and therefore otherwise not reviewable.
Third, what about a situation where you are looking to retire? The revised alimony statute provides guidance here as well. Now, the age in which one can retire for the purposed of reviewing support is directly tied to that person’s normal Social Security retirement age. For example, lets say that your Social Security retirement age is sixty-seven and you choose to retire and bring an application. The fact that you have met the age requirement does not mean that your support automatically stops. Instead, the statute provides a list of factors that the Court is to consider, a number of which were taken from the case law in this area.
There are other variations of these scenarios that are applicable as well but the bottom line remains the same. In the event that you are not working you absolutely can not count upon your support obligation simply stopping because you are not working. It is imperative that you plan as much as possible to ensure that you can maintain your support obligations post-employment to give you time to explore alternatives including bringing an application to the Court for review.
*This is the eighth article in a ten part series exploring the most common myths concerning divorce law in New Jersey.
All of the attorneys at Domers & Bonamassa are well versed and have years of experience addressing family law issues, no matter how complicated. Contact us today at (856) 596-2888 for a private consultation. We appear in the following counties: Burlington, Camden, Gloucester, Cumberland, Salem, Mercer, Ocean, Atlantic and Cape May. Our practice areas include: divorce, custody, parenting time, child support, alimony, domestic violence, college expenses, equitable distribution, name changes, step parent adoptions, paternity issues, child abuse and neglect, prenuptial agreements, mediation and arbitration.
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