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Unemployed & Underemployed Spouses in Divorce

Even though more and more families today include two spouses who work outside of the home, it is still common for divorces to include one “bread-winning” or higher earning spouse and another who does not work outside the marital home. The most common reason for one spouse to work inside the home is so that spouse could be the caretaker of the children.  However, many marriages include one spouse that works outside the home, even without children.

In some marriages, the lower earning spouse works at a part-time job or at a job that is below their qualifications. These spouses do not work to their full earning capacity and are commonly referred to as “underemployed.”

Cases involving unemployed or underemployed spouses present several issues that your family law attorney needs to be able to handle.  Naturally, the unemployed spouse is likely to seek support from the “bread-winning” or higher earning spouse in the divorce.  Among the many factors that the courts must take into consideration when determining alimony, the income levels of the parties are two of the principal factors to be considered. However, instead of using an income level of $0 for a spouse that does not work outside of the home, a court will often “impute” an income to the unemployed spouse.  The court will determine a fair imputed income by evaluating the spouse’s education, age, previous work history and any other certifications/qualifications that the spouse may have.  In cases where a spouse is underemployed, the courts will still impute an income to that spouse if the courts determine that the spouse is voluntarily underemployed.

Therefore, when determining support issues, the court will take into consideration the higher earning spouse’s actual income and the other spouse’s imputed income. The amount imputed to the unemployed or underemployed spouse could have a significant effect on the amount of alimony and child support ordered by the court.

Many divorcing parties think that they can avoid paying support if they quit their job or if they refuse to return to work. This ploy very rarely works. Similar to the non-bread winning spouse, if the bread-winning spouse were to suddenly quite his/her job and refuse to find employment, the court will normally impute to them the same income they were earning while employed at his/her past position. If the higher earning spouse loses his/her job involuntarily (due to market conditions or company downsizing), the court will then try to impute a fair income to that party, which may or may not be the same income that spouse earned at the position from which they were terminated. For instance, if a sixty-three year old spouse was terminated from his/her job due to company downsizing, it would be unfair for a court to impute an income equal to what that person was earning due and the unlikelihood of that the person finding a similar paying job at that age. The court will instead determine a fair income based on that spouse’s age, work experience and ability to become re-employed.

A vocational or employability expert can be retained to determine a fair income to impute to a party.  A vocational expert will meet with the unemployed/underemployed spouse and gather all relevant information related to his/her employability. After studying the current employment statistics and average salaries of relevant positions, the expert will then produce a report which will provide an opinion not only as to what income should be imputed to the party, but also provide a recommendation as to what field the party should seek employment. If the party is underemployed, the expert will opine as to whether the party is in fact underemployed. The expert may also provide suggestions as to how the party may increase his/her chances of becoming employed to their maximum potential (e.g., taking a computer course, going back to school in a particular field, etc.). It is common for the unemployed spouse and the higher earning spouse to each retain his/her own independent experts.

At Donahue Hagan Klein & Weisberg, LLC, we know how to represent those clients who have not worked outside the home during the marriage. Likewise, we are experienced in making sure our clients are not harmed or prejudiced by the fact that their spouse happens to be unemployed/underemployed at the time they decide to get divorced. Whether it occurs through negotiating, an expert report or trial, we will do everything within our power to make sure that a fair imputed income is determined so that an equitable result occurs.