Yes, in appropriate circumstances.
As controlling decisional law illustrates “a judge is not limited to a party’s actual earnings but may . . . consider potential earning capacity” and attribute income. These principles are gender-blind and apply to both spouses each of whom may be required to seek and hold employment commensurate with their training, skills, educational background and experience. Neither spouse is permitted to manipulate her income or employment opportunities to avoid familial obligations of support. Indeed, case law makes clear that alimony is not a vested right. Nor is there any “law that assures every married [person] the right to [live] a life of idleness [post-separation].”
“Attribution of income is particularly appropriate when a judge determines that a party (most often the primary wage earner and support provider) is voluntarily earning less than he . . . is capable of earning through reasonable effort.” While a spouse may have personal reasons (including “fulfillment” and “ambition”) for changing positions or career paths, those reasons “must be balanced against his obligations to support his former” family.
Things a trial judge will need to consider when determining whether to impute income include the age, health and the employment history of the underemployed spouse, the timing and reasons for his/her unemployment or under-employment (i.e. did he quit or was she laid off? If the latter, what were the reasons?), whether the underemployed spouse applied for unemployment benefits, performed internet employment searches, reviewed or responded to any newspaper advertisements, attempted to hire or correspond with any recruiters or job placement agencies, maintained notes of his job search efforts or a calendar of interviews, networked with peers, attended job fairs, maintained detailed telephone logs of calls, or researched any prospective “target” employers. It additionally may be helpful to review data from the U.S. Department of Labor, Bureau of Labor Statistics, which data may bolster or refute testimony concerning availability of employment in certain fields and locales.
If a court determines that imputation of income is appropriate, then the next questions that need to be answered are: how much to impute and what evidence is needed? In making that decision the trial judge is entitled both to make “assumptions” based on a spouse’s work history and education, and to estimate the amount attributable to the spouse in light of her earnings history and expenses. Indeed, as the Massachusetts Appeals Court has explained “[e]stimation is inherent in the attribution of future earnings.” Expert testimony, while many times helpful, is not required.