Thursday, August 21, 2008

But In Egypt I Only Make $86 A Month!

The Appellate Division of the Superior Court of New Jersey recently issued an Opinion wherein a father who had been living in the United States returned to his native Egypt and earned a salary equivalent to $86 American dollars per month. The trial court had directed he pay child support based on imputed income of $680 per week which was the salary that the court (and presumably the mother) believed he could earn if he lived in New Jersey. The Appellate Court, however, disagreed with the trial court’s reasoning and directed that the child support be recalculated based on his realistic ability to earn income in Egypt. Notably, both the mother and father in this case had come to America on visitor visas. While in America, their marriage deteriorated and only the father returned to Egypt. According to the record, he had then tried to return to the United States but was unable to obtain another visa.

The Opinion outlines the factors a court in New Jersey must consider when deciding whether or not to impute income. These factors include:

(1) "The employment status and earning capacity of the parent . . . if the family had remained intact;"

(2) "The reason . . . for the voluntary underemployment or unemployment;"

(3) "The availability of other assets that may be used to pay support;" and

(4) "The ages of any children in the parent’s household and child care alternatives."

As evidenced by the court’s Opinion, imputing income requires a detailed analysis and, often, comprehensive evidence. By way of example, proving "earning capacity" can sometimes require an expert to testify to an individual’s capabilities. Additionally, each parties’ position may be different on the issue of whether or not someone is "voluntarily" underemployed or unemployed. As with most support issues, detailed, clear and complete facts are the best way to convince a court of your position. In this case, the court noted that the father’s visa status prevented him from returning to America and therefore made it impractical to assume he could earn the wages potentially available to him in New Jersey. If earning capacity is an issue, a party must weigh the costs of litigation against potential outcomes as the court process can be costly and time consuming.

The cite for this case is Ibrahim v. Aziz, 402 NJ Super, 205, 953 A2d 508 (2008). You may be able to retrieve a copy at www.westlaw.com for a fee.

2 comments:

Anonymous said...

Do you have a copy of the opinion -- the link wasnt working = thanks

Linda A. Kerns, Esquire said...

The cite is no longer available on the NJ Superior Court website. You may be able to obtain it at www.westlaw.com for a fee.