Massachusetts divorce lawyer Nicole K. Levy reviews the attribution of income in child support and alimony cases in Massachusetts.
In cases involving child support and alimony, a Massachusetts probate and family court may “attribute” income to a party the judge feels in underemployed. Judges review each parties’ income, as well as other factors, to determine the appropriate amount of child support or alimony orders in every case. The task of determining each party’s income seems straight-forward on its face, but this can become a complex topic if one or both parties are earning less than they have in the past. In such cases, a party’s “income” may not be limited to their wages at the time of the litigation. A common question that arises in such cases is whether a party’s earning capacity exceeds their actual earnings. In other words, does a party have the ability to work and earn more money, but chooses not to?
A judge who determines that a party is underemployed may attribute income to that party. Real world examples when attribution may be appropriate are numerous. Most commonly, attribution is appropriate when a party has the skills and ability to earn more, but chooses not to seek full employment due to a voluntary job change. If a party voluntarily quit his or her job, or has chosen to become employed at a lower pay rate, the threat of attribution is at a peak. Indeed, even if a party’s earning capacity is modest, a judge may attribute income if the party has the time and ability to work, but has failed to find a job. Winning an attribution argument at trial, however, is not as easy as one might imagine.
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A judge is not required to attribute income to a party, and the court has wide discretion to decline an income attribution argument. Just because a party was previously employed and is now unemployed – or was previously employed at a higher pay rate – does not guarantee the prior earnings will be used to calculate support. A party’s current income is the starting point in any alimony or child support, and it is important to always be mindful that an attribution represents an exception to the ordinary rule.
There are a variety of factors that judges examine when making a determination regarding attribution. The Massachusetts Child Support Guidelines provide that attribution of income to a party may be appropriate where the judge has made a finding that a party is capable of working, but is unemployed or underemployed:
If the 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.
Massachusetts case law provides additional insight. For example, in C.D.L. v. M.M.L (2008), the Appeals Court noted 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.” However, in Flaherty v. Flaherty (1996), the Court fleshed out the opposite scenario:
Where … there is no evidence that a change in job status was voluntary, the party is making a reasonable effort to secure additional income, and he or she has no additional assets with which to pay the increased support order,” attribution of income is not proper.
In attribution cases, a judge will review the party’s educational background, skills and training, current health, a resume or history of employment, the party’s employability in the current market. (Note that a person can be qualified for a certain job, but if that job does not exist in the current market, an attribution could be inequitable.) A judge will also review and determine whether the party is making reasonable efforts to find new employment.
Ultimately, if a judge determines that a party is earning less than he or she could by way of reasonable efforts, the judge may (but not must) consider the party’s potential earning capacity rather than his or her actual earnings. Either party can face an order for attribution in a support case. However, attribution most commonly arises when a judge determines that the support provider, and not the recipient, is voluntarily earning less than he or she could through reasonable efforts..
Attribution is far from automatic in every case. For example, in Frederick v. Frederick (1990), the Appeals Court cautioned “against relying unduly on the income-earning potential of a wife . . . who has been out of the regular job market for decades.” However, if a support paying-paying spouse loses or her job, and his or her lifestyle has not changed despite the job loss, a judge may be more inclined to attribute income. For example, C.D.L. v. M.M.L (2008), the Appeals Court found:
[A]s to the husband’s living expenses, the judge further found that “[t]he Husband has taken no steps to diminish his anticipated lifestyle,” and that an attribution was in order so as not to “diminish the Wife’s lifestyle,” and to equalize the parties’ lifestyles.
In Schuler v.Schuler (1981), the Supreme Judicial Court noted that a judge may also weigh a party’s ownership of “substantial assets”, and continued standard of living following a job loss, in determining is whether attribution of income proper. However, in Ulin v. Polansky (2013), the Appeals Court cautioned against an overreliance on assets alone, noting:
Although Schuler, supra, and Flaherty, supra, discuss personal assets and a party’s continued maintenance of a standard of living in attributing income to that party, neither this court nor the Supreme Judicial Court has affirmed an attribution of income made without a finding concerning the party’s reasonable efforts to secure employment. Moreover, the attribution in this case was specifically tied to an earning capacity in the wife’s vocation, not to income she received from her family or from personal assets.
A recent unpublished opinion of the Appeals Court, Gallagher v. Gallagher (2016), illustrates some of the principles at work in attribution cases. In Gallagher, the Appeals Court reviewed a decision of the Hon. Catherine P. Sabaitis of the Plymouth Probate and Family Court. In the case, the former husband appealed the denial of his request for a modification of an alimony award. The former husband initially filed a complaint for modification due to his business closing. Following a trial, the probate and family court judge lowered the husband’s payments from $800 per week to $750 per week. The husband appealed, seeking for a further reduction.
In his appeal, former husband argued that income should be attributed to the former wife, who was trained as a teacher and had previously worked as a teacher. Of particular note was that $30,000 per year had been attributed to the wife at the time of the parties’ original divorce, in 2006, when the alimony order was first made. In the subsequent modification, the judge declined to attribute any income to the wife, who had remained unemployed throughout the trial, and who testified credibly that alimony had been her sole source of income since the divorce.
In its analysis, the Appeals Court noted it less frequent that a court attributes income to the recipient of the support when modifying a prior judgment. (Although the same may not hold true in the original divorce or action setting child support.) Ultimately, the Appeals Court acknowledged the trial court judge’s broad discretion in determining attribution, and declined to reverse on husband’s behalf.
In Gallagher, even with former husband earning less – he dropped from earning $176,000 annually to earning $124,696 annually – his loss of income generated only a slight reduction in alimony. Unlike the initial divorce, the judge declined to attribute $30,000 per year in income to the former wife in the modification case. The case illustrates the gamble a party takes when relying on an attribution argument at trial.
Like many issues in the Probate and Family Court, attribution cases are rarely cut-and-dry. Given the numerous factors at work, as well as the judge’s very broad discretion, it is best to carefully analyze and weigh whether an attribution argument is worth pursuing in litigation.
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About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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