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Ability to Earn to be Considered in Award of Spousal Support

In the unpublished case of Jensen v Jensen, issued on July 8, 2010 (Docket No. 289698), the Court of Appeals held that a trial court erred when it failed to consider the defendant-wife's unearned income potential in awarding spousal support. In that case, the Plaintiff-husband worked between 65 and 70 hours a week with an employer who offered unlimited overtime. Defendant, a registered nurse, worked only 30 hours per week, despite the availability of full-time work. Ironically, wife cited husband's long hours as one of the reasons for the breakdown of the marriage, but then asked the trial court to utilize these hours and the income derived thereby, in calculating alimony.

The trial court awarded defendant-wife $600/month for six years. The Court remanded the issue of spousal support to the trial court for review and recalculation based on defendant-wife's ability to earn. The Court also found that the court's division of the marital assets (55-45% in favor of defendant) to be inequitable in light of its failure to account for defendant's "voluntary" reduction in her income.

Lastly, the Court similarly disagreed with the trial court's award of attorney fees to wife. The trial court based its award on the parties' "disparity in income," even though wife failed to demonstrate that she was unable to bear the expense of paying her own attorney fees given her election to retain a part-time work schedule and thereby voluntarily reducing her income.

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