A Court has the authority to apply a needs test under certain circumstances where it is impossible to determine where the income is coming from. It also has the innate ability to impute income against one spouse where it is obvious that one spouse has income but declines to disclose it. Also, where a spouse has shown that he has the earning capacity to pay support, awards may be needed based or based upon the standard of living of the parties, whatever is larger. See DRL Section 236 B(5-1(U), in pertinent part “… When … the court is … presented with insufficient evidence to determine income the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action. whichever is larger. Such order may be retroactively modified upward without a showing or change in circumstances upon a showing of newly discovered evidence.” Also, “….Calculation of maintenance award over the income cap is not based on “an automatic formula but is based upon a set of….factors enunciated in DRL 236(8)(5-1)(h)(1)”]. Also see “Warshaw v Warshaw, 105 N.Y.S.3d 405 Under First Department law, this Court in its discretion may impute income against the other party if his account of his income to this Court is patently unbelievable when viewed in light of his lifestyle and his IRS filings. See Weitzner v Weitzner, 120 A.D.3d 1406. There, the First Department held that a Court is justified in imputing income against the Husband for purposes of calculating temporary spousal maintenance when it was demonstrated that the Husband’s portrayal of his financial circumstances was unbelievable based upon the lifestyle the parties enjoyed. It is respectfully submitted that this court need not ever rely upon the party’s own account of his or her finances where, given the marital lifestyle presented, the court could conclude that the party’s s actual income, wherewithal and resources were far greater than that which was reported to the Court. See Hoenig v. Hoenig, 245 A.D.2d 262, 263, 664 N.Y.S.2d 823; see also Felton v. Felton, 175 A.D.2d 794, 572 N.Y.S.2d 926). The court may thus impute income against the within Plaintiff to establish the party’s support obligation (see Domestic Relations Law§§ 240[1-bl[b][5l[iv]; 236 [Bl [5-a][b][4][a]; Wallach v. Wallach, 37 A.D.3d 707, 708, 831 N.Y.S.2d 210; see also Bittner v. Bittner, 296 A.D.2d 516, 517, 745 N.Y.S.2d 559; Wildenstein v. Wildenstein, 251 A.D.2d 189, 674 N.Y.S.2d 665). Also see the Court’s holding, in pertinent part, and stating that:

“… Here, the Supreme Court, in effect, found the defendant’s account of his own finances was not believable, and was justified in imputing income to him that

was far higher than he reported (see Turco v. Turco, 117 A.D.3d 719, 985 

N.Y.S.2d 261; Scammacca v. Scammacca, 15 A.D.3d 382, 790 N.Y.S.2d

482; Lilikakis v. Lilikakis, 308 A.D.2d 435, 764 N.Y.S.2d 206). Also see

(see Khaimova v. Mosheyev, 57 A.D.3d 737, 871 N.Y.S.2d 212; Peri v. Peri,.1_

A.D.3d 425, 767 N.Y.S.2d 846)….” Weitzner, supra.

In applying the law to most cases, then, if a party has shown that he has the ability to continue paying for the Defendant’s basic needs and the Defendant has shown a need for support in the amount requested then the Court may impute income and award a fair amount of support.  Similarly, the party that hides their income may in the same vein be held responsible to pay not only child support and spousal support in the amount requested but also be obliged to pay counsel fees and all bills and costs related to this matter.

Share this post