Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa and Orlando to Miami.
In this edition, I will be dealing with an area of frustration that is often cited when it comes to determining alimony and child support during a divorce and possible modifications in the years following a separation. And that is determining what your spouse or ex-spouse has the ability to earn if they are unemployed or a court determines they are underemployed.
To get our panel talking, we pitched them this question: What can I do during or after a divorce if my spouse refuses to work but is capable of doing so? And what does it mean to impute income?
For this edition, we talked to Ayo & Iken partner Alberto Ayo, Tampa-based Attorney Jeana Vogel, partner Howard Iken, and Alan Frisher, president of Family Law Inc., an advocacy group with 13,000 members seeking alimony reform in Florida.
There is a great deal of discretion that a judge can have in determining alimony and child support after weighing how much someone makes or, if they are unemployed, what their earning power could be. When that process of making those determinations is completed, a judge can then “impute” those findings into a final alimony structure. So what does it mean to impute income? When a court “imputes” income, it is essentially assuming that the party has a certain amount of income, even if he or she does not in fact have such income. To put it another way, when a court “imputes” income to one ex-spouse or the other, the court is treating that ex-spouse’s financial situation as if that ex-spouse did in fact make the additional income.
For example, suppose that Gloria has been informed that she will need to pay child support in her Florida child custody case. Because she does not feel she should have to pay anything, she decides that she will leave her present employment – at least until the child support order has been calculated and entered based on her unemployment. Then she intends to resume work so that she can keep more of her paycheck. Gloria’s ex-husband becomes aware of this plan, however, and brings it to the court’s attention. When the parties come to court and Gloria attempts to argue for a lower child support payment because of her “unemployment,” the court can impute income to Gloria and order her to pay a higher child support amount.”
There is not really anything you can do if someone chooses not to work. But there are protections you can do such as having a vocational evaluation conducted to see what someone is capable of earning to try to impute that money. Usually a judge won’t impute more than someone has earned. It’s also important to find out why someone is not working. Someone might claim they were fired but it’s easier to impute income if you can show they quit. Many times the court will have a person present documentation of their work history in order to determine their earning power. If a person doesn’t provide financial documents, sometimes the median income on the census bureau report for a full-time earned salary – which is currently around $43,000 – can be used.
Unfortunately, when you have someone who is not working the most that you usually can get imputed is minimum wage. Unfortunately that happens a lot. But, if the person has had a career and has had a good job and has had an earning history than we should be able to get more.
I always advise my clients to document in writing your objections to your spouse staying at home if he or she can work. A lot of times you can have a spouse who disputes the other person’s claims saying there was always an agreement to stay home so it’s important to document discussions where maybe you have asked them if they have gone on an interview or done any research into a getting a job. Sometimes it can also be helpful to have discussions with a mutual friend or in-law present because it’s hard later for someone to say a conversation like that didn’t happen. It’s kind of a gray area whether the court can order someone to work but a judge can find someone has the ability to work, so keeping track of what someone told you is important.
A judge can also impute income based on someone’s ability to work. I’ve done very well with cases like that. They can be difficult and depend on the judge. Typically you can also bring in a vocational expert to determine if a person is physically, mentally, and emotionally fit to work. You can also bring in private investigators and financial analysts who can be helpful. So yes, there are a lot of options.heri H
You can impress upon the court the fact that they are voluntarily gaining an advantage in our court system by remaining unemployed or underemployed. You can stress that our laws are based on the ability and the need for alimony based on the standard of living, which is where the court places its focus.
Unfortunately, from what I know about our current system, we cannot force anyone to work if they choose not to. Quite often, not working is a strategy employed by those seeking to receive alimony. Judges oftentimes try to ‘maintain the standard of living as was had during the marriage’ – even though we know that isn’t possible unless there is highly substantial income over expenses – and therefore will order the income producing spouse to pay the non-income producing spouse amounts that are currently not dictated by any formula.
Judges can impute income to the non-income producing spouse based on what they can potentially earn (based on their skill set, and possibly former employ), or just impute minimum wage if they really haven’t worked, or are incapable of working due to a disability.
If the income producing spouse can prove to the Judge that his/her spouse is purposefully not working, but is capable of working, then the judge can simply order no alimony to be paid…but that is extremely rare. Vocational counselors are oftentimes called in to assess whether or not a person is capable of working, and at what profession.
Imputation of income is a fiction that is made up by the judge to bring fairness to an otherwise unfair situation. It is a concept only used when one spouse or the other chooses not to work – and that decision causes the other spouse to lose some rights they otherwise would have. It is one of the toughest issues that we attorneys face because there is no definite method laid out in the law. Anytime we start talking about imputing income we also tend to discuss how difficult the case will be.
I highly recommend perusing our website page that provides an excellent in-depth look at the particulars regarding imputation of income. Here’s the link, https://www.myfloridalaw.com/alimony/imputed-income-florida
That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on alimony rights. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.
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