Posted by Nydia Streets of Streets Law in Florida Alimony
What are some factors a Florida divorce court reviews to determine if a spouse is underemployed when deciding if alimony should be awarded? For one, the court might look at the employment history of the spouse, or consider the testimony of a vocational evaluator who can assess a party’s earning potential. This was an issue in the case Burke v. Burke, 2D20-1398 (Fla. 2d DCA September 3, 2021).
In their divorce case, the former wife sought permanent alimony from the former husband. The testimony indicated the former wife was 60 years old at the time of the divorce who was a stay at home mother for most of the marriage, but only worked part-time for the 14 years leading up to the divorce. Although the former wife testified that she was not incapable of working full-time, she stated that she wished to remain part-time. The evidence showed the former wife had a bachelor's degree in elementary education but never used it to obtain a full-time teaching position. The former husband continued to work as a police officer throughout the marriage and at the time of divorce.
The trial court awarded the former wife $2,500.00 per month in permanent alimony and the former husband appealed. The appellate court upheld the ruling, holding this amount was well within the former husband’s ability to pay. The court further held “The court concluded that the Former Wife ‘was not underemployed’—a not unreasonable determination since the Former Wife is now a sixty-year-old woman who had been a stay-at-home mother for the parties’ two children and only worked part-time for the fourteen years leading up to the trial. The court also rejected the opinion of Former Husband's vocational expert concerning the Former Wife's future employment prospects as a teacher. The court was free to make those evidentiary assessments. As an appellate court, we are not free to reweigh them, Meyers v. Meyers, 295 So. 3d 1207, 1213 (Fla. 2d DCA 2020), and certainly not in the guise of a purported ‘legal error.’"
This opinion is interesting because it includes a lengthy dissent which discusses a spouse’s underemployment and the statutory application to the same. If you need assistance with your Florida family law case, schedule a consultation with a Miami divorce lawyer to develop a strategy in moving forward.