Posted by Nydia Streets of Streets Law in Florida Alimony
When a court determines a party is underemployed or voluntarily unemployed for purposes of calculating Florida alimony, can it postpone imputation of income until the party is in a position to obtain employment? This issue arose in the case Horowitz v. Horowitz, 2D18-2074 (Fla. 2d DCA May 29, 2019).
The parties were married for 15 and a half years by the time the parties sought a divorce. The evidence indicated the former wife was employed full-time when the parties married, but left the workforce for five years to raise the parties’ children. Thereafter, she had trouble maintaining employment and by the time of the divorce trial, she was 42 years old and unemployed. The former wife requested permanent alimony, and a vocational evaluation was ordered.
The vocational expert testified the former wife was capable of employment, but “also recognized that the Former Wife suffered from situational depression due primarily to the parties' divorce. Jacobson concluded that the Former Wife needed therapy and life coaching to help her work through her depression and transition to full-time employment.” The expert concluded the former wife was capable of earning an annual salary of between $22,000 and $35,000 within 6 months. The court, relying on the expert’s testimony, awarded durational, rather than permanent, alimony to former wife and bridge-the-gap alimony that would enable to her to pay for the therapy recommended by the expert. Despite the expert’s opinion the former wife would not be suitable for employment until she completed the therapy, the court declined to postpone the imputation of income to the former wife when it calculated the alimony payments.
The former wife appealed, arguing it was error to impute income to her immediately, and that the court failed to make findings regarding the parties’ monthly expenses in calculating the alimony. On these grounds, the appellate court agreed with the former wife. First with regard to imputation of income, the court held, “As indicated previously, the trial court expressly found [the expert’s] opinions to be ‘credible and consistent with the other credible evidence presented.’ Moreover, the court recognized the need to improve the Former Wife's emotional state before she could maintain employment when making its oral pronouncements at the end of the trial. There was simply no evidence to support the court's decision to impute income immediately.” The court rejected the notion that the former wife should be “punished” because she failed to seek therapy while the divorce was pending, noting “[T]he Former Wife was not ordered to obtain full-time employment until the final judgment was entered. Until that point, she was claiming that her physical and mental infirmities prevented her from working full-time. Thus, her failure to obtain the counseling she needed to become employable full-time did not provide a reasonable basis to refuse to delay imputing income.”
Turning to the former wife’s argument regarding the court’s failure to make findings about the parties’ monthly expenses in calculating alimony, the appellate court agreed with her, holding “The Former Husband disputed several of the Former Wife's monthly expenses, and without factual findings it is impossible to tell which values the court accepted. Furthermore, we are unable to determine how the court factored in the assets and liabilities that were equitably distributed. Finally, the question of the Former Husband's ability to pay still needs to be resolved. Accordingly, we reverse and remand for the court to reconsider the amount of durational alimony.”
If you are wondering how much alimony you might be awarded or ordered to pay in your Florida divorce, a consultation with a Miami divorce lawyer may assist you. Schedule one today to form a specific plan for moving forward in your case.