Sometimes, the husband argues that he cannot work anymore or does not have the income he had at the onset of the divorce, and the wife, in turn, contends that the income should be imputed, or attributed. He contends that he is struggling to survive as a novelist; she contends he is a willfully unemployed idler. She supports her contention by demonstrating that he has the ability to work and that the unemployment is elective.

This can happen during the trajectory of the divorce or when the parties appeal for modifications of alimony or child support as a result of a change in circumstance, but on this point, the wife has the law on her side. In general, for purposes of spousal and child support, courts consider the earning capacities of the parties, not their actual income. Courts view elective unemployment (idling) or underemployment as bad faith and remedy that with the legal fiction of imputed income, which makes the party responsible for the payment.

Courts impute income in two ways — the first, as a matter of fact, where the court considers the actual earnings of the spouse, and the second, as a matter of law, where the court considers the earning power of the party.

For example, a judge may impute a certain income level to a brain surgeon who abandons his profession to become a street musician because courts believe his family has a right to income that would have been provided had he paid “diligent attention” to his career. The rationale behind the imputation of income is that no one should be allowed to escape obligations by taking actions that make the fulfillment of such obligations impossible.

The desire of a woman to stay at home with small children is a good-faith reason for not imputing income to her, courts have found.

If you have an alimony order in place, the only way to not pay legally, would be to have the alimony order modified.

Modifying alimony is not normal. Alimony is typically set in stone until certain circumstances occur (remarriage, death, etc.). These circumstances should be clearly stated in your divorce decree or judgment. Alimony is typically awarded based on the property distribution, so modifying the alimony would mean that the property award is no longer fair.

If you do stop paying the alimony, you are subjecting yourself to being taken back to court, paying arrearages and potentially other severe penalties.

If your income has significantly decreased for a significant period of time, it may be worth trying to get the court to recognized that the current alimony order is not fair, but be prepared to provide evidence that payment of the order is not feasible.