The practice of income attribution to a party in determining the
amount of income imputed to him or her for purposes of child and/or
spousal support has long been recognized in the commonwealth. Such
attribution is appropriate when a support obligor is found to be
capable of working but is "unemployed or underemployed" (Child
Support Guidelines, § IIH and G.L. c. 208, § 53(f)) or when a party
has "made vague, misleading, or untruthful entries on a financial
statement" M.C. v. T.K., 463 Mass. 226, 241 (2012). In
such instances the income attributed to a party is not based on
actual income but on the ability to produce income.
ROLE OF THE JUDGE
Where the appropriate circumstances exist, "a judge is not
limited to a party's actual earnings but may . . . consider
potential earning capacity' when attributing income."
Kelley v. Kelley, 64 Mass.App.Ct. 733, 741 (2005) (quoting
Heins v. Ledis, 422 Mass. 477, 485 (1996). There are
several sources of law that allow for the practice of income
attribution in domestic relations cases that deal with alimony and
child support. Both the Child Support Guidelines and the new
alimony statute (specifically M.G.L. c. 208 § 53) explicitly allow
for income attribution in calculating awards of support. Moreover,
there exists a significant body of case law that employs income
attribution. However, it is the judge that ultimately has the
discretion to attribute income within the confines of statutory and
case law. Moreover, the appropriate circumstances and amount of
income that is imputed varies widely on a case-by-case basis as
judges see fit, as "[t]he guidelines and our case law leave the
definition of income flexible, and the judge's discretion in its
determination broad." Casey v. Casey, 79 Mass.App.Ct. 623,
The Child Support Guidelines, effective 2009, discuss income
attribution in a few different contexts. Generally, "[a]ttribution
of income is intended to be applied where a finding has been made
that either party is capable of working and is unemployed or
underemployed. The court shall1 consider all relevant
factors including without limitation the education, training,
health and past employment of history of the party, and the age,
number, needs and care of the children covered by this order. If
the court determines that either party is earning less than he or
she could through reasonable effort, the court should consider
potential earning capacity rather than actual earning in making
this order." Child Support Guidelines (2009), section II H.
The Child Support Guidelines further allow for what amounts to
income attribution in the contexts of self-employment and
unreported income. Specifically, the guidelines provide that " . .
. income and expenses from self-employment or operation of a
business should be carefully reviewed to determine the appropriate
level of gross income available . . . [i]n many cases this amount
will differ from a determination of business income for tax
purposes." Id. at Section C. Accordingly, where a court
finds that a party is underreporting income, " . . . the court may
reasonably impute income to the parent based on all the evidence
submitted, including . . . evidence of the parent's ownership and
maintenance of assets, and the parent's lifestyle, expenses and
spending patterns." Id. at Section I, D.
Pursuant to M.G.L. c. 208 § 53 (f), "[i]n determining the
incomes of parties with respect to the issue of alimony, the court
may attribute income to a party who is unemployed or
underemployed." While the statutory language of M.G.L. c. 208 § 53
explicitly contemplates income attribution in those cases dealing
with a parties' unemployment and/or underemployment, case law
provides a wider variety of circumstances warranting income
In a case dealing with a husband's complaint for modification of
his alimony and support obligations, the Supreme Judicial Court
looked to other states for guidance on the issue of income
attribution. Schuler v. Schuler, 382 Mass. 366 (1981). The
husband in this case was unemployed, although admittedly employable
with positions reasonably available to him. The husband chose to
remain unemployed as he sought a specific position of limited
availability. In addition to the his admitted employability, the
SJC found that although unemployed, the husband possessed
substantial assets and had not lowered his standard of living as a
result of his unemployment.
In Schuler, the SJC held that there was no abuse of
discretion on the part of the lower court judge in considering the
husband's potential income and ultimately deciding against
a modification of the original divorce judgment. Id. at
374. The SJC reasoned that is was unreasonable for the husband to
wait indefinitely while seeking a specific position, when other
positions were available to him. Id. Thus, the SJC
explicitly provided that judges are not restricted to the reported
income of the parties in making orders for support, and that
attendant circumstances should be considered.
AMOUNT OF INCOME ATTRIBUTED
The circumstances surrounding a party's unemployment, including
his or her intent in the case of voluntary unemployment and the
availability of employment with reasonable effort, are driving
factor in a court's decision to potentially impute income. In
addition, a party's ownership of substantial assets may also be
weighed in determining whether attribution is proper. Conversely,
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, child support orders must
be based upon present income." Flaherty v. Flaherty, 40
Mass.App.Ct. 289, 291 (1996).
Although "[i]t is by far the better practice for a judge . . .
to specify an amount, or define a reasonably finite range, of the
income to be so attributed," judges are not wholly restricted in
determining the amount of income that may be attributed to a party.
C.D.L. v. M.M.L., 72 Mass.App.Ct. 146, 155 (2008). Rather,
the amount of income attributed is often estimated because
estimation is considered inherent to the process of attributing
future earnings. Id. For example, a finding of potential
earning capacity is often fashioned after, or the equivalent of
prior earnings. Likewise, in the event that a judge finds that a
party has inaccurately disclosed income, assets and/or benefits, he
or she may attribute a reasonable amount estimated to represent the
inaccurately disclosed income. See Canning v. Juskalian,
33 Mass.App.Ct. 202, 211 (1992) (holding that the judge's
augmentation of a support award with an estimated amount based on
income derived from a party's inaccurately disclosed real estate
holdings was reasonable).
Where a court finds that a self-employed party is commingling
business and personal expenditures, courts may disregard and
substitute reasonable figures in place of reported figures.
Smith-Clarke v. Clarke, 44 Mass.App.Ct. 404, 406 (1998).
Similarly, courts have attributed the fair rental value of the home
as income, where a party is residing rent-free. The reasoning is
that " . . . although [it is not] actual income in the sense that
it is 'cash in hand,' the ability to live rent-free undoubtedly
reduced [the husband's] out-of-pocket expenditures significantly
and, accordingly, should be valued." Crowe v. Fong, 45
Mass.App.Ct. 673, 680 (1998).
In a recent case, the SJC upheld a significant award of
attorney's fees after identifying and considering the circumstances
surrounding an obligor's unemployment at the time of the fee
assessment. Hunter v. Rose, 463 Mass. 488 (2012). The
obligor was adjudicated the legal mother of her former same-sex
partner's biological child, and she chose to forgo a medical
residency after the lower court ordered the minor child's
relocation to Massachusetts with the birth mother. Id. The
SJC found that the lower court permissibly characterized the
obligor's decision to forgo an employment position in order to
relocate as "voluntary and avoidable" unemployment, also
considering that she had the financial support of her family and
was under less financial strain than the birth mother. Id.
THE PUNITIVE NATURE OF INCOME ATTRIBUTION
A judge may give significant weight to a party's attempts to
hide income in making a determination to attribute income to that
party. In Fong, the Appeals Court found that the obligors
" . . . testimony was 'fraught with deception in an attempt to hide
from the court his net worth and his ability to pay for the support
of his child.'" Id. at 682 (quoting Mancuso v.
Mancuso, 12 Mass.App.Ct. 973, 974 (1981)). Based on the
obligor's actions, the court reasoned that it would not only be
unconscionable to ignore his behavior, but ignoring his behavior
would actually serve to award his deceptive behavior. Id.
Accordingly, attribution of income may also be construed as
punitive in nature.
Recent case law has reinforced the practice of income
attribution as effectively punitive in nature. In M.C.,
the SJC found that the lower court did not err in imputing income
to a father with respect to child support. The father in
M.C. argued that the lower court erred by failing to make
"specific and detailed findings" in support of its decision to
attribute income to him. However, the SJC stated that it " . . .
reject[s] the father's argument, unsupported by citation to any
authority, that in order to attribute income to him, the judge was
required to make specific findings . . . " M.C. at 241.
Rather, the SJC held that the lower court appropriately attributed
income where it found that the father lacked credibility and made
"vague, misleading, or untruthful entries" on his financial
When one party in a divorce is demonstratively refusing to be
forthcoming about his or her income, or potential income that can
be produced from assets, attribution is appropriate. In a case
where the difference between the reported income and that party's
ability to produce higher income is in dispute, counsel should put
together evidence from which an adverse inference can be drawn
showing that attribution of income is appropriate.
For example, when the potential support obligor operates a
business in which he or she has a controlling interest, and
thereafter reports a dramatic decline in income around the time of
the divorce or separation, attributing income is appropriate unless
the party can produce evidence explaining why income has declined
due to independent market factors.
Finally, when a party has failed to produce satisfactory
responses to discovery requests or documentation related to income,
attribution of income is also appropriate. The test is not actual
income reported, but the capacity to produce higher amounts.
P. KINDREGAN teaches Family Law at Suffolk University Law
School and is the co-author (with Maureen McBrien) of the Family
Law books in the Mass. Practice Series and other books.
CHRISTINA M. KNOPF is a
graduate of Suffolk University Law School. She is an associate with
the law firm of Micheal I. Flores LLC, where she devotes her skills
to the representation of clients involved in domestic relations
1It should be noted that the Child Support Guidelines
Task Force, in their October 2008 report, discussed their choice of
the words "shall" and "should," as opposed to "may," which was
deliberate. In other words, the guidelines set forth that if either
party is earning less than he or she could be earning through
reasonable effort, then that parties' potential earning capacity
should be used, rather than their actual earnings, in calculating a
support order. Moreover, the task force eliminated the language in
past versions of the guidelines that automatically precluded
attribution of income for custodial parents with children under the
age of six.