What happens when a payor ex-spouse becomes disabled after the divorce and is no longer able to pay support obligations? Is he/she still obligated to pay?
In determining alimony, counsel fees, and property distribution, income may be imputed to a party who is voluntarily unemployed or underemployed; this requires intentional conduct without just cause.
In New Jersey, inheritance is viewed as separate property and is not subject to equitable distribution irrespective of when the inheritance is received. Nonetheless, inheritance can play a major role in assigning child support and alimony obligations. Keep in mind, inheritance monies should never be intermingled with joint assets. Always keep your inheritance separate from joint assets to avoid it being subject to equitable distribution.
For example, if the payee has stayed home to raise children and tend to the home, she (typically’) may not receive all she believes she is owed if she has inheritance monies. The fact that inheritance cannot be divided between the parties, does not prevent the interest earned from investing the inheritance being calculated into support obligations. By this, the payee may actually become a “payor” as well, and be forced to contribute to her support or the support of her children through the interest received on her inheritance.
UNDEREMPLOYMENT
In some circumstances, a party who is obligated to pay alimony and/or child support may change their employment, earn substantially less than before, and seek to have either obligation decreased on the basis of decreased income.
The New Jersey Courts will not overlook this event; it is not a matter of happenstance. In fact, New Jersey Courts may impute income to the payor up to the amount the payor earned at his/her prior employment.
In Mowery, the Court held it is not merely the present earnings of the payor, but the potential earning capacity that is the essence of this factor. Mowery v. Mowery, 38 N.J. Super. 92 102 (App. Div. 1955).
New Jersey Family Law Blog