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Understanding the role of “earning potential” in alimony

On Behalf of | Feb 14, 2024 | High Asset Divorce

When judges determine how much alimony one spouse is required to pay the other following their divorce (and possibly before the divorce is final), one of the key considerations is how much money each one earns. 

Another very important factor – particularly for a payee who has put their career on the back burner during the marriage – is how much they should be able to earn as they get back into the workplace. This is based on how long they’ve been away from the workplace, how much updating of their skills and/or education they need and more.

For a spouse who has been a stay-at-home parent, their income may not be enough to support themselves for a time. That is where alimony can be an important source of financial support.

What if someone chooses to remain underemployed?

Unfortunately, some former spouses may choose to be “underemployed” to avoid paying any more alimony than possible. They may feel that if the extra money they’ll earn from taking a more senior position or taking on new projects if they’re an independent contractor will go to their ex, they’d rather not do it. Payees may do the same in order to continue to receive alimony. That’s called “sandbagging.” 

Neither of these is a wise thing to do. Former spouses are likely to bring this to the attention of a judge. To determine whether the alimony payments are appropriate, judges will look at the allegedly underemployed spouse’s earning potential. That is how much they should be able to earn based on things like their experience, education, age, health line of work and the current job market. When a judge adjusts alimony based on a difference between income and earning potential, that’s often referred to as “imputing” their income. 

Whichever side of the equation you’re on, it’s important to make a strong case for modifying a support order. Having experienced legal guidance can help.


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