A Georgia court can set alimony on what a spouse is able to earn rather than what that spouse reports, but the figure has to be supported by evidence.
No Imputation Statute for Alimony
Georgia’s child support guidelines contain a detailed imputation rule, OCGA 19-6-15(f)(4), which we cover in our child support posts. Alimony has no counterpart. Instead, OCGA 19-6-5(a)(7) requires the court to consider the parties’ “earning capacity,” and the cases construe that.
What the Court May Look At
In Duncan v. Duncan, 262 Ga. 872 (1993), the Georgia Supreme Court explained that “numerous factors must go into a determination of a party’s earning capacity; no single factor will be conclusive. While a party’s past income is some evidence of his or her earning capacity, it is not the only such evidence.”
Where the Number Came From
In Duncan, the husband had earned $45,000 to $65,000 a year before being laid off and was working three jobs for about $21,000. The trial court set alimony and child support on an ability to earn $32,000. The Georgia Supreme Court reversed: that finding “is not supported by the evidence and the court’s award, based as it was upon that determination, cannot stand.”
Similarly, in Lockhart v. Lockhart, 361 Ga. App. 499 (2021), the trial court imputed $48,000 a year from the husband’s earlier years driving a tow truck, although he had since earned far less, and the Court of Appeals vacated the alimony award along with the child support. And in Coker v. Coker, 286 Ga. 20 (2009), a $36,500 lump sum was reversed because “the record is completely devoid of any evidence of Husband’s ability to pay the trial court’s lump sum alimony award.”
So a court may look past a pay stub, but it cannot invent a salary. Past earnings and qualifications are fair game; the award still has to rest on what the spouse can earn now.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!