Unemployed Spouse and Income

Underemployed Spouse

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FOR YEARS, your spouse worked and made a good income—enough to support the family. Now you are divorcing, he or she has decided to quit his or her job. Or perhaps your spouse got laid off and can’t find comparable work. Maybe your spouse is working in a different job now that you are separated, but is not forthcoming with financial disclosure information, despite the requirement to do so under Florida law. What happens? How does the Court make fair decisions in light of these circumstances?

Florida Statute 61.30(2)(b) permits the Court to impute income (assign an income) where there isn’t adequate proof of income, for the purposes of determining child support and other financial matters in a divorce proceeding.

The statute states: “Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on the parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstance over which the parent has not control.”

In imputing income in the case of voluntary unemployment or underemployment, the Court will first look to the evidence provided regarding work history, occupational qualifications, and what similarly occupied people earn in the community.

Should this information not be disclosed to the Court, income may be assigned base on “the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census.” What this means is that the Court will find the median income between a minimum wage employee working 40 hours a week and much higher levels of income according to the Census. In Florida, the median income could be somewhere between $41,000 and $65,000 depending on the size of the family.

For the Court to impute income in this manner, it must make specific findings of fact. Namely, that the unemployment or underemployment is voluntary, and the source of the imputed income which must take into account evidence of available employment for a person with the same level of education, experience, licensure and geographic location. The Court also may take into consideration time-sharing, including the parent’s historical use of time-sharing. (Has he or she been spending time with the child in accordance with the plan, is he or she primarily responsibly for the child in a way that prohibits adequate employment, etc.)

Income may not be imputed based on income records older than five years or on an income level that a party has never earned before (unless newly licensed with an anticipation of higher income).

If you are dealing with a spouse who chooses unemployment or underemployment as a means of reducing child support, call Sandra K. Ambrose today to schedule a consultation to discuss your options. Attorney Sandy Ambrose has more than 27 years experience in family law matters, including dissolution of marriage, alimony, equitable distribution, child support and child custody.