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How Do Alimony and Child Support Work When a Spouse is Underemployed or Unemployed?

Florida courts have typically held that voluntary unemployment or underemployment of a spouse or parent  will be considered when determining whether to impute (or to assign) income for awarding child support or alimony.

If an ex-spouse has the ability to contribute to support, he or she must try to do so. Florida law says that that income can be imputed to a person who’s voluntarily unemployed or underemployed unless the court finds that their situation is due to circumstances beyond that parent’s control.

There’s no statute requiring the imputation of income for alimony purposes, but Florida courts generally will impute income in those cases. Income can be imputed to either spouse or both parties. Usually, income is imputed to the paying spouse when their ex is seeking child support or alimony.

Here’s a recent case as an example…

A Recent Example

Two years ago, the Florida District Court of Appeal, Fifth District sent a case back to the trial court to reconsider the imputation of income to a former wife, alimony, child support, and for partition of the marital home. On remand, the trial court imputed a smaller amount income to the wife, but she again appealed that decision.

The Court of Appeal recently explained that Florida Statutes § 61.30(2)(b) says that once a trial court finds a party is underemployed, it must consider the party’s “employment potential and probable earnings level” based on “recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.” The court may impute income to a spouse earning less than she could with the use of her best efforts, but there has to be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount. In this case, the trial court’s imputation of income wasn’t supported by substantial, competent evidence. The Court of Appeal instructed the trial court to recalculate alimony and child support without imputing any income to the wife.

In addition, the Court of Appeal found that the trial court erred in rejecting some of the wife’s monthly expenses in computing her need. With no explanation, the trial court omitted the amounts the wife listed for payments on her car, entertainment for her and the children, club dues and memberships, monthly gifts, religious contributions, education expenses, and tax liability on alimony. However, the trial court allowed similar expenses for the husband in computing his net income. On remand, the trial court was directed to re-compute the wife’s monthly need, including these expenses, unless it provides a specific explanation for their exclusion.

Finally, the Court of Appeal noted that the trial court complied with its instructions in 2015 to order the partition of the martial home, but it determined the wife’s share of the equity based upon the assumptions made under its prior order granting the husband possession of the home. As a result, the appellate court ordered the trial court to compute the wife’s equity share based on the home’s actual selling price. Dottaviano v. Dottaviano, Case No. 5D16-1322 (DCA 5th June 2, 2017).

Imputing Income in Florida Divorce Settlements

As the Court of Appeal explained, Florida Statutes say that the party seeking to impute income has the burden to present competent, substantial evidence that:

  1. The unemployment or underemployment is voluntary; and

  2. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

Aside from this, the statute explains that income may not be imputed based upon:

  1. Income records that are more than five years old at the time of the hearing or trial at which imputation is sought; or

  2. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

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As you can see from the Dottaviano case, a spouse may need to wrestle with the court and their former spouse to receive a fair settlement. And in some cases, it can take more than one try.

Protecting a spouse’s rights and representing his or her interests in receiving a fair property settlement and sufficient alimony is the goal of the DeVoe Law Firm in Orlando. Hire an experienced divorce attorney to advise you about your rights in divorce, especially as they relate to your property, alimony, and expenses. Call DeVoe Law Firm to schedule a free consultation with an experienced attorney.

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