In a recent decision by the Appeals Court of Massachusetts – albeit under Rule 23, so it is not considered binding precedent though it can be cited for persuasive purposes – the Court overturned a portion of a divorce judgment that required the Wife, who would be receiving alimony, to seek full-time employment as a bookkeeper and to accept any offer of employment in that specific field. The trial court’s judgment, the Appeals Court reasoned, overstepped its statutory authority.
In cases where a party to a divorce action is unemployed or underemployed, a judge may – depending on the circumstances – attribute income to him or her for support purposes. This statutory provision, which is encoded in the Alimony Reform Act, gives a judge discretion to determine whether someone is voluntarily earning less income than they otherwise would utilizing reasonable diligence given their skills and training. If the judge makes such a determination, he or she can then attribute income to that party, essentially “pretending” that the party makes X amount of money and adjusting the support amount accordingly.
In this case, the trial judge improperly went further, ordering the wife to immediately seek a bookkeeping job, which was in accordance with her training. She was then also ordered to accept whatever bookkeeping job was offered to her. These rulings came despite her objection that, although she acknowledged that she was underemployed, she preferred to find new employment in the education arena, where she had prior experience.
The Appeals Court overturned these provisions in the judgment, on the basis that the Alimony Reform Act gave the judge the authority to attribute income, but not to order a party to obtain a specific kind of employment. The Court remanded the judgment back to the trial court to amend the judgment by striking these provisions and engaging in an analysis of whether income should be attributed to the wife and, if so, in what amount.
Lawyers should take care to propose judgments that do not exceed the bounds of a judge’s statutory authority. In circumstances like these, the attribution of income is a proper remedy, and a proper calculation of ranges – likely through a vocational expert’s opinion testimony – should be a goal of the litigation.