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08/15/14 It's The Law: Income Can Be Imputed For Alimony and Child Support

It's The Law

Income Can Be Imputed For Alimony or Child Support

(08/15/14)

Question:

I am going through a divorce. My spouse has threatened to stop working so my spouse will not have to pay alimony or child support. If that happens, will my spouse really be off the hook?

Answer:

Florida cases have long held that voluntary unemployment or underemployment of a spouse or parent is a factor to be considered by courts in deciding whether to impute income for awarding child support, alimony or attorney's fees. If a person has the ability to contribute to support, that person must make an effort to do so. Florida Statutes mandate that income be imputed to a person who is voluntarily unemployed or underemployed for child support purposes, unless the court finds unemployment or underemployment is due to circumstances over which the parent has no control. There is no statute mandating imputation of income for alimony purposes, but judges will impute income in those cases despite the absence of the statutory mandate.

Income can be imputed to the payor, payee or both. Most often, income is imputed to the paying person where a recipient is seeking child support or alimony.

To impute income, a judge must go through analysis of all relevant factors. A court must first determine that the unemployment or underemployment is voluntary. The court must also find that the underemployment continues due to absence of a good faith effort to gain employment equal to or better than previously earned.

In the case of Ensley v. Ensley, the former husband was earning more than $60,000 a year. When he left the marriage, he told his wife that she would be sorry when he quit because she would be the one who suffers. He quit his job but then made a concerted effort to find a job with comparable pay. His next job paid $23,920 per year. When the wife asked the court to impute a $60,000 salary, the court refused because the husband made a diligent, good faith effort to find a job that would replace his previous salary and was unable to do so.

Imputed income is uncertain when someone has a voluntary reduction in income associated with efforts to increase earning ability in the future. In one early case, an emergency room doctor took a significant pay cut to pursue training in cardiology. The court ruled alimony payments would be based on his reduced income, although the former spouse could petition the court for an increase in the future.

Courts have been more willing to impute income under same circumstances where child support is involved. Those cases focus on the child and impute income based upon the previous, higher income, because the reduction in income for a parent to pursue education and future benefit is not in the best interest of the child. Best interests of the recipient is now also a determining factor in alimony cases.

A final judgment imputing income must include specific findings based on competent, substantial evidence of intentional underemployment, availability of employment with greater income and a source for such income. The level of income is generally based on the persons recent work history and the prevailing earnings for comparable positions in the community. That means, previous earnings of the person are not the sole criteria, especially if the prevailing earning for a similar position is significantly higher or lower in that persons locale. If a person's previous income was due to illegal activity, the court cannot use that past activity to impute income.

One interesting area is gifts from a parent. When the gifts are sporadic, they are generally ignored. When the gifts are consistent and follow a pattern over time, courts often consider them income to the recipient.

Parental gifts were considered by the court in the recent case of Steele v. Love. In that case, the former husband was unemployed and starting a new business, which was not producing income. His parents paid for his living expenses for 19 months and his attorney's fees in the divorce case. The evidence established that the former husband received about $3000.00 a month from his parents.

The former husband's father testified that he might not be able to continue the payments indefinitely, but that he and his wife would do their best to support their son as long as they could. The court noted the gifts from the former husband's parents were regular, periodic payments and ruled that they should be considered income for determining child support to be paid by the former husband.

Imputing income requires expert testimony and good courtroom skill. Presenting the necessary evidence in a manner that is convincing is not an easy task. You need a good lawyer in these cases.

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 EagleOther articles of interest can be viewed at our website, www.wgmorrislaw.com

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