New Jersey Divorce and Family Lawyer Blog
When calculating child support obligation, the courts first look to the Child Support Guidelines established by the Supreme Court of New Jersey. The Guidelines factor in income from all sources of both parents in order to determine the parents’ respective child support obligations. However, when it comes to income that is available for support purposes, what is important to consider is not merely what someone’s actual, earned wages are, but what the parents’ income capacities are. If a parent is voluntarily underemployed or unemployed and earning less than what he or she is capable of earning, the Child Support Guidelines allows the court to impute income to the parent who could or should be earning more. Child support would be calculated based on what a parent is capable of earning, rather than what the parent is actually earning.
It is not, however, always clear what a person is capable of earning or whether a person is voluntarily underemployed. Some people have sporadic or variable income. Some people earn income from second jobs or from overtime hours.
In the recently published case of the Superior Court of New Jersey in Ferrer v. Colon, FD-2392-07 (Ch. Div. 2020), the family court assessed whether to impute income to a parent for child support purposes because overtime hours were available to her that she did not utilize. Should the court impute income to her based on income available to her even if she did not take advantage of all of those hours?