Alimony and a Voluntarily Underemployed and Unemployed Spouse

Divorce can become acrimonious easily and quickly. With the division of a family, the financial and non-financial aspects of marriage are dissected and reviewed to determine the most equitable arrangement that would put both parties in a good position. However, there are circumstances in which the parties may have a hard time being put equal, maybe because one party was the breadwinner while the other party was working in the home and raising the children. When there is disparity in potential and actual earnings between the partners, the courts look to provide some form of alimony, or spousal maintenance, that will make sure that one party is not more advantaged by the divorce, while the other party is left destitute. If you and your spouse are considering a divorce, it is important to speak with an experienced family law attorney.

What is Alimony?

Alimony, or spousal maintenance, is different from child support, which also needs to be shared between both parties when kids are in the mix. Alimony, however, looks to ensure that there is some equality in the outcome of the divorce, since in the marriage, both parties were used to a certain quality of life. However, acrimony can lead to divisive and rather belligerent responses to the equitable distribution of property and alimony where one party, generally the breadwinner, looks to lock the other party out financially.

When One Party is Voluntarily Unemployed or Underemployed

When one of the parties is voluntarily unemployed or underemployed, the courts look to determine the factual circumstances surrounding the unemployment/underemployment. If one spouse just did not work as a matter of preference, the Court will evaluate that factor when determining the future of alimony. The court, for example, will most likely never require one spouse to support another spouse interminably just because the spouse does not voluntarily want to work. The arrangement, however, may be different if the other spouse does not have the power to make a livable wage, either due to age, a physical or mental impairment, or other hardship that will be considered by the court.

Factors Courts Analyze to Determine Whether to Impute Income for Alimony Purposes

There have been circumstances in which one party, the breadwinner, decides that he or she does not want to give his or her ex-spouse a significant amount of money from his or her annual earnings, and decides instead to leave a job that earned $120,000 per year for a job that earns only $40,000 per year. Generally, the average amount of income earned annually by the breadwinner will be computed and used by the court to determine alimony and how much the breadwinner can afford per year for the other spouse. However, even if the breadwinner decides to take a cut in salary to keep alimony payments low, the Court will analyze the extent to which the breadwinner took this earnings cut to limit alimony payments and determine how to ensure fairness between the spouses.

For example, if the breadwinner decides to quit his or her job and become unemployed, the court may still require the breadwinner to pay if the court finds that the unemployment is voluntary, and the breadwinner has not taken a good-faith effort to find employment that is equal to and/or better than what he or she was previously earning. The court will analyze the breadwinner’s qualifications, the types of jobs readily available in the area, and to what extent the breadwinner is job-hunting to find the job that satisfies the court’s analysis.

According to Florida law, if a spouse has the ability to contribute to alimony and support, he or she must take steps to do so. Though there is no statute that mandates that income need to be imputed from the underemployed or unemployed spouse for alimony, judges may use their discretion to mandate the imputation of income.

Please contact West Palm Beach family law attorney William Wallshein for a confidential consultation.