The lazy ex: Imputation of income in Florida divorce proceedings

When a family goes through divorce, the court examines the spouses’ incomes, along with other relevant factors and legal requirements, to determine appropriate transfer of money between them after the marriage in the form of child support or alimony. But what happens when a spouse voluntarily chooses not to work or takes a job that pays far less than what they could earn given their qualifications, artificially deflating what they could pay for support?

In Florida, the court can impute (count it because the person has the ability and qualifications to earn it) income to such a spouse in certain situations.

Child support

Florida child support law says that the court must impute income to a voluntarily under- or unemployed parent for determining fair child support, unless the failure to work to their vocational or professional potential comes from “physical or mental incapacity or other circumstances over which the parent has no control.”

To determine proper earnings to impute, the court looks at recent work history, qualifications and the prevailing wage in the local community. If this information is unavailable or the parent at issue does not participate or provide financial information, the court must presume the income level to impute based on census reports. The parent seeking to have income imputed who thinks it should be higher than the presumed level can rebut this presumption with “competent, substantial evidence” outlined in statute.

For example, in McDuffie v. McDuffie, the First District Court of Appeal said that the trial court should not have imputed income to the wife of full-time work at $10 per hour without competent, substantial evidence. The husband had not submitted evidence of the job market, local wage rates or the appropriate job for her qualifications, and she had not worked during the 14-year marriage.  

Alimony

Similarly, when a Florida court looks at whether spousal support is appropriate, earning capacity and employability are factors the court must consider.

The Fifth District Court of Appeals explained in Frerking v. Stacy that to impute income for purposes of alimony, the other party must show that the underemployment is voluntary and the spouse has used “best efforts” to work at a level equal to or higher than previously. However, this does not mean that the person is expected to take courses or retrain – current qualifications are the standard for imputing income.

Accordingly, the court disagreed with the trial court that the wife should have the income of a teacher imputed to her when she did not have the proper education or license to teach.

A Florida attorney can answer questions about imputation of income in divorce proceedings.

(McDuffie v. McDuffie is available on Westlaw at 155 So.3d 1234.)

 

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