When calculating alimony the courts first test is to compare the party’s need with the other party’s ability to pay. Both of these amounts are largely determined by the parties’ incomes. When one of the parties has a drastic change in income during the divorce proceedings (and this happens all the time) the other party will often, justifiably, claim that the income change was purposely to avoid taxes.
It’s especially sad when the spouse reduces their income for the purposes of paying lower child support.
In the case of a purposeful reduction of income, the other spouse can ask the courts to impute income. The definition of impute is to act as though the income did exist for legal purposes.
When imputation of income is requested, Florida courts apply the following test to see if imputation is warranted:
“Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control…First the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment resulted from the spouse’s pursuit of his own interest or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received” Rodriguez v. Medero 17 So. 3d 867
In other words, the court will calculate your income as whatever you used to make before unless it’s totally out of your control (you were laid off in a very specific career or you become disabled).
If you become disabled, your will not have your income imputed to your old salary and it is the responsibility of the other party to prove you’re disabled (your disability is given the benefit of the doubt).
In my experience, imputation becomes an issue of waiting the other person out. It’s easier to prove you can’t work when you’ve been out of work for six months or more. More strangely, many people find they’re quite comfortable with lower standard of living. If the person is truly unemployed through no fault of their own they should be getting unemployment insurance. If not, the court should impute 40 hours a week at minimum wage $ 8.25/hour in Naples, Florida.
The court may also order the unemployed/underemployed spouse to fulfill a job diary. This is where the spouse records their job search. While you can’t force someone to take a job (that’s slavery) you can force them to look for one. In my twelve years of practicing family law, I have never had a person get a job from their job diarized search. The point of a job diary seems to be that it is more annoying to fill out the job diary than to get an actual job.
The unemployed or underemployed party cannot just say “Oh well, I’m unemployed and looking for work. I hope I find something.” The rule is “The Florida Supreme Court and other district courts have suggested that a presumption arises from a spouse’s historical earnings that supports a finding that the spouse can continue to earn the same amount, absent evidence to the contrary.” Ghay v. Ghay, 954 So. 2d 1186.
Often a non-working spouse has some source of income. Whether it be a secret job, or support from parents or a boyfriend or girlfriend. The courts don’t even need to estimate what these secret funds are because the courts can just use the Ghay v. Ghay rule to impute the full income of when the spouse was working.
So what do you do if someone has never worked or hasn’t worked in years and refuses to work? How do you find out what their income should be for the purposes of imputation? You have to hire a vocational expert to investigate and then testify to the court what the spouse should be able to make if they did, in fact work. Fitzgerald v. Fitzgerald 912 So. 2d 363 (Fla 2d DCA 2005)
And what do you do if your spouse does something so stupid that it gets them fired (this happens all the time when the spouse uses the company credit card for expenses with their new boyfriend or girlfriend)? If you get fired for cause in Florida, your income is going to be imputed. Vazquez v. Vazquez, 922 So. 2d 368 (Fla. 4th DCA 2006)
To learn more about whether your income will be imputed or whether you can impute your spouse’s income for the purposes of alimony or child support, contact my Naples, Florida law office to schedule a free consultation.