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03/28/13 It's The Law: Alimony Can Be Complicated

It's The Law

Alimony Can Get Complicated

(3/28/13)

Question:

My spouse and I have been married 25 years. We are now divorcing and my spouse wants alimony. I know my spouse could get a job, but he has been unemployed for more than 10 years. Will I get stuck with alimony?

Answer:

Alimony is one of the most complex issues in a divorce case. Long ago, Florida's Legislature tried to simplify child support issues by adopting a statutory schedule for child support based upon parent income. The Legislature has repeatedly tweaked statutes addressing property distribution in divorce in an effort to simplify the issue of who gets what. But, the Legislature has yet to adopt a formulaic approach for alimony.

Section 61.08 of Florida Statutes is the primary statute addressing alimony. It divides marriages into short, moderate and long term and factors to consider in determining award of alimony. Long term marriages (at least 17 years) most easily qualify for permanent alimony.

The first question in alimony issues is does either spouse need alimony? Only if need is shown does the court move on to ability of the other spouse to pay and consideration of the factors to be addressed under the statute.

In your case, it sounds like your spouse is intentionally unemployed. That may allow the court to find that your spouse could work and earn income. If the court makes that finding, the judge will impute income to your spouse and apply the imputed income to determine if your spouse would still have a need for alimony. The recent case of Broemer v. Broemer is a good example of how that works.

The Broemers were married for 27 years and were in their mid-fifties. Mrs. Broemer finished 11th grade. Despite requests by her husband to work, she was primarily a stay-at-home mom, even after the children became adults. Mrs. Broemer claimed she could not work because of her physical condition. Her family physician testified that she had symptoms of carpal tunnel syndrome in both wrists, depression and a shaking condition known as "essential tremors". He further opined that she was unable to perform any work involving repeated lifting of 20 pounds or more.

Mr. Broemer hired a vocational expert, who interviewed Mrs. Broemer. The vocational expert testified that Mrs. Broemer was functioning at a 12th grade level and could pass the G.E.D. The expert opined that without a high school degree, Mrs. Broemer could obtain employment earning $15,196.00 annually. The expert further testified that if Mrs. Broemer obtained a G.E.D. and some training in computers and telephone systems, she could get a job paying between $15,000.00 and $20,000.00 per year and that all of these positions would be sedentary and require occasional lifting of no more than 10 pounds. The expert explained to the court that there was free and low cost vocational assistance available for displaced homemakers.

The trial court agreed with Mr. Broemer and, after the wife appealed, so did the appellate court. The appellate court explained that before a court can impute income, it must first conclude that termination of employment was voluntary as was failure to seek employment. Competent substantial evidence supported the finding that the wife was intentionally unemployed and could earn at least $15,000.00 annually without any further training. The court held Mr. Broemer met his burden of proving voluntary unemployment, availability of suitable employment, and the income that would be generated from that employment. That imputed income reduced the alimony to be paid by Mr. Broemer

Imputed income can have a significant impact on the alimony debate. But, income cannot be imputed unless all 3 factors are established. Proving voluntary unemployment does not usually require an expert. Availability of employment for which the spouse qualifies and income that would follow must usually be established by expert testimony. These complexities virtually mandate obtaining an experienced attorney.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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