It's The Law: Income vs support

Q: I have a friend who is getting divorced. She is asking for alimony and child support but her husband has cut back on his work so he can show the court he makes very little money. Is that fair?

A: Even though the parties may characterize the judge’s decision as fair or unfair, the concept of fairness rarely controls the outcome in court. Judges are generally required to apply statutes or established case law to the facts of the case. That application determines the outcome.

Income of the parties is a major factor in determining the amount of child support or alimony. That makes the issue of unemployment or underemployment often litigated in divorce cases.

Intentional decrease in earnings while divorce is pending is something judges have seen in many cases. Other cases, a spouse is unemployed. The judge in those cases can be asked to impute income to the underemployed or unemployed spouse based upon that party’s earning capacity instead of actual income.

To prove earning capacity, it must be shown that the reduced earnings are voluntary and that employment or access to additional income is generally available. That can be difficult.

Merely introducing help wanted advertisements is not enough. It must be shown that the unemployed person is qualified and could obtain the employment referenced in the advertisements. Judges are required to include in their judgment the imputed amount and the sources for imputed income. In fact, Section 61.30(2)(b) of the Florida Statues mandates income be imputed to an unemployed or underemployed parent if the court finds the parents status is voluntary. Income can be imputed in both original proceedings and when one party requests modification of a previous award.

Although it can be difficult to prove imputed income, one area where courts have seemed happy to impute income has been where a reduction in income is the result of a wrongful act. In Mascola v. Lusskin, a parent was jailed for attempting to kill the mother, who he happened to be paying child support. He asked the court to reduce or eliminate his child support obligation, because he could not work in jail. The court rejected his request. The judge explained that his jail time was the result of a voluntary act and that his child support obligation would continue while he was in jail. Arrearages would accumulate until he was released from jail and could return to work. When he returned to work, the court would create a payment plan for arrearages and set current child support. The judge could then hold him in contempt of court for failure to pay, based upon his post jail income.

The logic of the judge in the Mascola case was approved by the Florida Supreme Court. The Florida Supreme Court explained that a jailed parent should not be released from child support obligations because deferred payment of the support to the child provides the child with an opportunity to recover from the loss of support while the parent is jailed. A child is entitled to the benefit of a parent’s support, even if deferred.

Imputation of income requires much evidence. The party requesting income be imputed often fails because some part of their claim is unconvincing. That makes the role of counsel in these cases extremely important. You should suggest your friend consult with an experienced attorney immediately and start preparing a case to prove her husband’s earning capability.

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: or by fax, (239) 642-0722.

© 2010 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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