One of the most common fears in grey divorce sounds like this:

I left the workforce to raise our children.
Will the court assume I can simply return to a six-figure career?

For spouses divorcing in New York City or Westchester County, the answer is more nuanced than many assume.

New York courts have the authority to impute income to a spouse who is not working or is earning below their potential. But they are not required to do so. In long-term marriages involving primary caregivers, particularly those over age fifty, courts often decline to impute income where the employment break was legitimate and family-driven.

Understanding how that discretion works is critical in grey divorce cases in Manhattan, White Plains, and throughout the surrounding region.

What the Law Actually Requires

Under New York Domestic Relations Law § 236, courts deciding maintenance must evaluate:

• Present and future earning capacity

• A history of limited workforce participation

• The impact of caregiving on earning potential

• Reduced or lost earning capacity from forgone education, training, or employment

• Contributions as a spouse, parent, homemaker, and to the other spouse’s career

The statute gives courts discretion. It does not require automatic imputation of income to a nonworking caregiver.

In practice, judges in NYC and in Westchester County look closely at the factual record. Maintenance outcomes often turn on credibility, age, health, and the length of the marriage.

What the Appellate Courts Have Said

New York appellate decisions make clear that income imputation is discretionary.

In DeCrescenzo v. Suslak, the court affirmed a refusal to impute full-time income to a spouse who had left the workforce to care for children. The absence was legitimate and not in bad faith.

In Tuchman v. Tuchman, the court held it improper to impute income to a spouse who had been out of the workforce for decades at the other spouse’s request. The court instead awarded nondurational maintenance, recognizing age, the length of the marriage, and realistic earning prospects.

Cases such as Williams v. Williams and Bean v. Bean reflect similar reasoning. Courts evaluate:

• Age

• Duration of workforce absence

• Realistic reemployment prospects

• Marital standard of living

• Whether there is evidence of intentional underemployment

The consistent theme is this: courts do not automatically impute income to long-term caregivers.

Where the Real Risk Lies

Because imputation is discretionary, assumptions can create risk.

A caregiver in a White Plains divorce who assumes income will never be imputed may be unprepared if the evidence shows some earning capacity.

A higher-earning spouse in Manhattan who assumes income will automatically be imputed may underestimate potential maintenance exposure.

Imputation is not ideological. It is evidentiary.

Judges typically ask:

• Why was there a workforce absence?

• How long did it last?

• Was it agreed upon during the marriage?

• How old is the spouse now?

• What is realistically attainable in today’s job market?

• Is there evidence of bad faith?

• What was the marital lifestyle?

The answers to those questions can significantly shape maintenance outcomes.

Why This Matters in Mediation

In divorce mediation, earning capacity must be evaluated realistically.

Mediation is not detached from legal standards. Any agreement must reflect how a court would likely analyze the facts. At the same time, mediation offers flexibility that litigation often cannot provide.

In mediation, spouses can:

• Acknowledge the long-term economic impact of caregiving

• Develop realistic re-entry timelines instead of assuming immediate full-time employment

• Structure step-up or step-down maintenance

• Address retraining costs and transitional planning

• Consider retirement equalization in a broader financial framework

For families divorcing in New York City, Manhattan, or White Plains, thoughtful mediation can prevent decisions driven by fear or misunderstanding.

The Balance Between Equity and Evidence

New York courts recognize that caregiving can permanently alter earning capacity, particularly in long-term marriages and for spouses over fifty. They also retain the authority to impute income where the record supports it.

The law does not treat caregiving as voluntary underemployment. Nor does it provide blanket immunity from imputation.

Instead, it requires a careful, fact-driven analysis.

That is why broad statements about what courts “always” do are misleading. Each case turns on its own record.

The Real Question in Grey Divorce

In long-term marriages where one spouse stepped back professionally and the other accelerated, the issue is not simply whether income can be imputed.

The real questions are:

• What is realistic?

• What is supported by evidence?

• What reflects the economic partnership of the marriage?

• How would a court likely view these facts?

In grey divorce, earning capacity is not a formula. It is a narrative supported by evidence.

Navigating that narrative requires clear judgment, grounded in both the statute and how courts in NYC and Westchester County actually apply it.