It's The Law: Income may be imputed for alimony calculation

Income may be imputed for alimony calculation

Question: I am getting divorced. My wife has not worked for a long time, despite my requests that she get a job. I know she could work, but she claims she is entitled to alimony because she has no income. Is she right?

Answer: Section 61.08 of Florida Statutes is the primary law addressing alimony. The first factor is whether one party has need for alimony and if the other party has the ability to pay. If the court reaches a positive conclusion on that issue, it is directed to consider all relevant factors, including but not limited to those specified by the statute and “any other factor necessary to do equity and justice between the parties.”

Included among the factors to be considered by the court are “(e) earning capacity, educational level and employability of the parties and, if applicable, time necessary for either party to acquire sufficient education or training to find appropriate employment, and (i) all sources of income available to either party.” Florida courts have relied on that statute as authority to impute income to a voluntarily unemployed or underemployed spouse. However, the burden of proof is on the party seeking to impute income to the other spouse. The recent case of Broemer v. Broemer is a good example of imputed income.

The Broemers were divorced in 2012. Mary Broemer was last employed in 1993. An occupational expert hired by Thomas Broemer testified that without a high school degree, the wife could obtain employment at $15,196 annually. The expert also opined that the former wife could easily obtain a G.E.D., which would increase her earning ability to as much as $20,000 a year. The wife had a doctor testify that she suffered from carpal tunnel syndrome in both wrists and a shaking condition known as “essential tremor.” The doctor testified that in his opinion the former wife was unable to perform any work involving repeated lifting of 20 pounds or more. The wife argued that because of her medical condition she could not get a job.

The court determined the former wife qualified for several jobs that would pay $15,000 to $17,000 per year, but that she had made no effort to secure work. The court then imputed income to her of $15,000 for alimony calculations.

The trial judge was affirmed on appeal. The appellate court pointed out that before a court can impute income, it must conclude that termination of income was voluntary and also whether any underemployment resulted from the spouse’s pursuit of his or her own interests or through less than diligent and bona fide effort to find employment paying income at a level equal to or better than that formerly received. It explained the trial court was required to make specific findings regarding the source and amount of imputed income, which must be based on evidence at trial.

The court agreed that there was sufficient evidence of employability and income potential. It disagreed with the wife’s claim that she was disabled and unable to work.

The appellate court also agreed with the trial judge’s determination of employability. It noted that the former wife claimed to be disabled, but had never applied for Social Security or disability. In addition, the trial judge had the opportunity to personally view and assess the former wife’s demeanor and physical circumstances, giving the trial judge an advantage in determining employability.

As explained in the Broemer case, income can only be imputed when there is competent evidence that a spouse is intentionally unemployed or underemployed. That will almost always require expert testimony and a well prepared case. If you are trying to navigate the rivers of divorce court on your own, stop now and retain an experienced attorney.

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

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