When you make a claim for alimony, there are multiple hurdles you’ll need to clear. You’ll need to prove that you have a financial need. You’ll need to prove that your ex-spouse has the ability to pay. You may also have to overcome arguments from your ex-spouse that seek to impute income to you. All of these are areas in which the knowledge and skill of an experienced Florida alimony attorney can provide a major benefit.
The key issue in the divorce case of Carlos and Anemey was alimony. In making the necessary findings regarding the husband’s ability to pay and the wife’s need, the court must make income determinations for each spouse. Additionally, the court may impute income to either spouse if the judge concludes that that spouse is voluntarily unemployed or underemployed. In this case, it was the imputation of income that sent the case all the way to the Fourth District Court of Appeal.
Anemey was a stay-at-home parent during most of the couple’s marriage. By the time the couple began going through the divorce process, Anemey was a 62-year-old with a GED and minimal work experience. She last worked for a cosmetics company in California, making $12 per hour. She testified that she intended to work full-time, but she had received no replies to any of the job applications she submitted. Nevertheless, the court concluded that she should be capable of landing a 40-hour-per-week job that paid $10 per hour, so it imputed income to her in the amount of $400 per week.
In addition to that $400 per week, the court imputed an additional $640 of monthly income to the wife for Social Security. While it was true that the wife was eligible to receive $640 per month in Social Security benefits, she had chosen to defer those benefits until she turned 65 so that she could receive a larger benefit ($900 per month).
In her appeal, the wife contested the trial court’s decision to impute income based upon Social Security benefits for which she had not applied and that she was not receiving. The appeals court agreed with her. The court explained that, when calculating a spouse’s income in an alimony dispute, the trial judge can only look at income that is “available” to the spouse. Imputing income is appropriate only when the spouse is voluntarily reducing his or her income.
In Anemey’s case, since she had not even applied for Social Security benefits, those benefits were not available to her, even though she was 62 and eligible. The court followed the reasoning of a 2000 case from Michigan, in which the judges concluded that a wife’s choice to defer pension benefits in exchange for a larger payment in the future should not be viewed as “a voluntary reduction in income, but rather as a possibly prudent investment strategy.” Given that Anemey would receive an extra $3,000+ per year by waiting until age 65, hers too was a possibly prudent investment strategy, and the courts were not entitled to impute income based upon the Social Security benefits she did not pursue or receive.
Whether your divorce case involves alimony, child support, property division, or all of the above, it helps to have seasoned legal counsel on your side. The diligent South Florida alimony attorneys at Sandy T. Fox, P.A. have been helping people with alimony and other family law issues for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
Imputing Income to a Parent in Florida, Even When that Parent Has a Disability, Fort Lauderdale Divorce Lawyer Blog, Oct. 12, 2017
Overcoming Your Ex-Spouse’s Claim that Your Choice of Career Constitutes Voluntary Underemployment in Florida, Fort Lauderdale Divorce Lawyer Blog, Sept. 13, 2017