In cases involving child support and alimony in Massachusetts, can a party be made accountable for the money he or she is not making?
Child support and alimony orders can become a complicated matter if one or both parties are earning less than they have in the past. Although a party’s current income is the starting point in any child support and alimony case, a Massachusetts probate and family court may deem it necessary to “attribute” income to a party the judge feels is underemployed.
According to the Massachusetts Child Support Guidelines, “If a court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.”
A similar insight can be found in C.D.L. v. M.M.L. (2008), where the Appeals Court stated that “[a]ttribution of income is particularly appropriate when a judge determines that a party … is voluntarily earning less than he or she is capable of earning through reasonable effort.” The opposite scenario was explored in Flaherty v. Flaherty (1996), where the court noted that attribution is not appropriate if there is no evidence of changing job status voluntarily, the party is trying to “secure additional income, and he or she has no additional assets with which to pay support.”
There are numerous situations where attribution may be appropriate. However, attribution most commonly occurs when a judge determines that a party has the ability and skills to earn more, but, through a voluntary job change, chooses not to seek full employment and is earning less than he or she should through reasonable efforts.
It’s also important to note that either party can face an order for attribution in a support case, but attribution occurs most frequently when a judge determines that the support provider, and not the recipient, is voluntarily failing to meet his or her earning potential. In attribution cases, a judge will review a party’s:
However, just because a party was once employed at a higher pay rate doesn’t mean that the prior earnings will be used to calculate support, and attribution is far from automatic in every case as judges are not required to attribute income. In fact, winning an attribution argument at trial can be more difficult than one might imagine.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts.