Posted by Nydia Streets of Streets Law in Florida Divorce

In a Florida divorce case, the court seeks to award each spouse his or her fair share of the marital estate through a process known as equitable division. It is important to remember that equitable does not always mean equal. In the case Jones v. Jones, 5D19-879 (Fla. 5th DCA May 1, 2020), the former wife appealed the court’s equitable distribution ruling, imputation of income to her, and the denial of her claim for attorneys’ fees and costs.

At trial, the former wife argued that she did not disagree with the values in the former husband’s proposed equitable distribution chart, but that she did not have the ability to pay the equalizing payment demanded by the former husband. An equalizing payment is one made by one spouse to the other to balance the distribution of assets and debts in a divorce. So for example, if one spouse is awarded assets and debts that leave him or her with less equity in the entire marital estate than the other spouse, the other spouse would owe that spouse an equalizing payment. The appellate court agreed with the former wife that the trial court erred in ordering an equalizing payment, holding “It is apparent from Former Wife’s financial affidavit that Former Wife did not have the ability to make an equalizing payment without placing herself in financial jeopardy. See Abramovic v. Abramovic, 188 So. 3d 61 (Fla. 4th DCA 2016) (finding trial court erred in imposing equalizing payment plan where no record evidence established former wife’s ability to make such payments; instead, record reflected that former wife could not make payments).”

Regarding imputation of income, the appellate court found the trial court was correct to find the former wife was voluntarily underemployed where the court ordered the parties’ children were no longer to be home-schooled and therefore the former wife would have the opportunity to work full-time. However, the appellate court found the trial court erred in imputing income to the former wife by using previous income figures alone to determine her earning capacity. The court held “Here, Former Husband failed to present any evidence of available jobs that Former Wife would qualify for or the salaries for those jobs. Instead, he relied solely on her testimony regarding her previous jobs and salaries. Accordingly, although competent substantial evidence supported the imputation of income to Former Wife, the record does not contain competent substantial evidence to support the imputation of income to Former Wife at $17.50 per hour because that amount was based solely on her past income.”

Finally, with regard to the former wife’s appeal regarding attorneys’ fees, the appellate court held the trial court was correct in denying her claim for fees. The court held “Our review of the record also reveals that after payment of monthly alimony and child support, Former Husband lacks the ability to contribute to Former Wife’s attorney’s fees. Additionally, Former Wife failed to point to any record evidence related to the reasonableness of her attorney’s fees. She admittedly used marital assets to pay her first attorney’s fees, which were approximately $100,000; her trial counsel described those fees as “exorbitant.” Furthermore, Former Wife’s trial counsel testified to his hourly rate and retainer fee but did not present any evidence of the hours expended on her case.”

A Florida divorce can contain many issues which require careful presentation to the court. Schedule a consultation with a Miami divorce lawyer to go over the specifics of your case.