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Divorcing wife can’t be ordered to take higher paying job

Few things cause more resentment after a marriage than paying alimony to an ex-spouse who is under-employed and could be making significantly more money if he or she wanted to. This is why it’s common for courts to attribute income to a spouse that he or she potentially could be earning while reducing the payor spouse’s obligation accordingly.

But can a judge order an alimony recipient working in a lower-paying field to take a higher-paying job in another field that he or she is qualified for? A Massachusetts case indicates that the answer is “No.”

In that case, Vasiliki Pavlo filed for divorce from her husband, John Pavlo, a successful orthodontist, after 11 years of marriage. Vasiliki had an accounting degree and had worked part-time as a bookkeeper for John’s practice.

While the divorce was pending, a family court judge entered a temporary order requiring Vasiliki to seek part-time employment. In the final divorce judgment, John was ordered to pay alimony.

The judge also ordered Vasiliki to seek full-time employment as a bookkeeper and to document her efforts to do so. Meanwhile, the judge attributed $32,000 in income to Vasiliki.

In a motion for reconsideration, Vasiliki protested that she had undergone training in early childhood education and wanted to complete her training and become a full-time Montessori preschool teacher.

The judge denied her motion, explaining that Vasiliki was obligated to maximize her earning potential to allow a determination of the appropriate amount of alimony for John to pay. The judge also amended the divorce judgment to require Vasiliki to accept “any offer of employment as a bookkeeper” commensurate with her experience.

But the Massachusetts Appeals Court reversed the ruling.

In doing so, the court emphasized that the state alimony statute has no provision allowing a judge to require a spouse, whether payor or recipient, to work at a specific job in a specific field.

Instead, said the panel, attribution of income is the proper remedy only when an unemployed or underemployed recipient does not make reasonable efforts to maximize his or her earning potential.

Keep in mind, however, that this is a Massachusetts case decided under state law. A family law attorney can tell you how it works where you live.

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