Posted by Nydia Streets of Streets Law in Florida Alimony

When parties are voluntarily underemployed or unemployed, a court may impute income for purposes of calculating Florida alimony. This means the court will treat each party as if he or she is earning income he or she is capable of earning even if he or she is not actually earning that income. This in theory forces the underemployed or unemployed spouse to obtain employment at the salary level he or she is capable of earning so that the court-ordered amount can be paid. But what if after being imputed income, a spouse uses best efforts and gets a job that pays less than the amount imputed to him or her? This happened in the recent appellate case Hampson v. Hampson, 2D19-1105 (Fla. 2d DCA January 22, 2021).

The parties were married for thirty years by the time the former wife filed her petition for divorce. She was the primary caretaker of the parties’ children during the marriage, and worked part-time. The former husband was employed as an executive until he lost his job about seven months after the petition for divorce was filed. By the time of trial, both parties had been evaluated by a vocational expert. Annual income of $17,850 was imputed to the former wife and $104,131 was imputed to the former husband. The trial court determined alimony based on both parties’ gross incomes. After the trial, but before the entry of the final judgment, the former husband became employed, but was earning less than was imputed to him at trial.

On appeal, the appellate court found it was error for the trial court to use gross income to calculate alimony rather than the parties’ net incomes. As to the former husband’s new employment, the appellate court held “"Former Husband did not disclose this information to the trial court until he moved for rehearing in January 2019. Although the trial court properly denied the motion for rehearing, the trial court should consider Former Husband's current income when it recalculates alimony on remand." In a note as to why the motion for rehearing was properly denied, the court stated “The dissolution hearing was held on October 11, 2018. Former Husband received the subject job offer on November 21, 2018, and began employment on December 3, 2018. The court announced its rulings on December 7, 2018, in a detailed letter to the parties' counsels. Consistent with that letter, the judgment was prepared by Former Wife's attorney and reviewed by Former Husband's attorney before it was submitted to the trial court on December 19, 2018. The judgment was signed on December 31, 2018, and filed by the clerk on January 8, 2019. Former Husband filed his motion for rehearing on January 16, 2019, arguing that the trial court should reconsider the alimony award in light of ‘newly discovered evidence’ concerning his employment and salary.”

Getting support calculations correct in a Florida divorce may start with a consultation with a Miami divorce lawyer. Schedule a meeting to go over your case and to understand what factors may be important in your case.