Florida  Statutes Section 61.08 also provides the following for the Court to consider:

“(2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.”

Noteworthy is that there is no savings component for alimony (i.e. a party is not required to pay alimony to another party in any amount above their “need” so that the receiving party has additional funds to put away for savings, even if the parties historically were able to put away money for savings.  It is not the obligation of the payor spouse to provide the payee spouse with more support than is necessary to meet the payee spouse’s need.

The Florida Supreme Court has determined that “[i]n awarding alimony, the court may *610 not factor in speculative post-dissolution savings based upon a marital history of frugality.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). Put another way, “alimony may not include a savings component.” Id. at 1141. In Donoff v. Donoff, 940 So.2d 1221, 1224 (Fla. 4th DCA 2006), this court cited Mallard and stated that trial courts may not “increase the amount of alimony by adding an investment (i.e., growth) allowance….”  Rosecan v. Springer, 985 So.2d 607 (Fla. 4th DCa 2008).

There are also several forms of alimony that may be available to a party, depending on the length of the marriage of the parties, as well as other factors. Those forms of alimony are durational, permanent periodic, lump sum, bridge-the-gap, and rehabilitative. Alimony can also be ordered on a temporary basis.

Finally, for purposes of calculating child support, a party’s gross income is reduced for any payment of alimony, thereby possibly reducing the amount of child support.  If an alimony obligation ends before the minor children obtain the age of majority, child support should be recalculated to take into account this change.

If you are unsure of the amount of alimony you may be entitled to receive or the amount of alimony you may be required to pay, set up a consultation with McNeal Legal to discuss possible outcomes of your case.

Photos in this blog are courtesy of: flickr.com and wikimedia.org

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Pursuant to Florida Statutes §61.30(2)(b):

“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 that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to 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. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:

1. In order for the court to impute income at an amount other than 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, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

2. Except as set forth in subparagraph 1., income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

(c) Public assistance as defined in §409.2554 shall be excluded from gross income.”

In Bronson v. Bronson, 793 So.2d 1109 (Fla. 4th DCA 2001), the Court imputed income to a party who had lost their job due to excessive absenteeism.  The Court noted that a claim that a spouse has arranged his financial circumstances so as to avoid paying the payee spouse is a valid matter to be considered by the trial court in determining the payor’s real ability to pay. See Smith v. Smith, 737 So.2d 641, 644 (Fla. 1st DCA 1999).  In such a situation, an award of alimony entirely exhausting the husband’s actual income may be a proper exercise of the trial court’s discretion. Maddux v. Maddux, 495 So.2d 863 (Fla. 4th DCA 1986). See also Avery v. Avery, 548 So.2d 865 (Fla. 4th DCA 1989).

In Rabbath v. Farid, 4 So.3d 778 (Fla. 1st DCA 2009), the Court cited to prior decisions to note that the child support guidelines require income to be imputed on a monthly basis to an unemployed or underemployed parent, where the parent’s work status is found to be voluntary rather than the result of circumstances beyond the parent’s control. See § 61.30(2)(b), Fla. Stat. (2005); Smith, 737 So.2d at 643, 645. In such instances of voluntary underemployment, the statute states:

[T]he employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for a parent to stay home with the child.

So long as these statutory factors are properly taken into account, the trial court has discretion to impute income in the amount the parent was earning before voluntarily reducing his or her income. Smith, 737 So.2d at 645.

The burden is on the party wanting to impute income to prove the amount that the Court should impute.  McNeal Legal can help a party apply the current law to their facts to determine if imputation of income is available, and what amount is possible.

Photos in this blog are courtesy of: flickr.com and freestockphotos.biz

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Well, first, you probably need to find another lawyer. If a person’s sole purpose in a divorce action is to “get back” at their partner, McNeal Legal, LLC might not be the right firm for you.

There are times when proving adultery IS relevant to a case, and certainly times when proving adultery is NOT relevant to a case.

Florida is a “no fault” divorce state. Neither party has to have a reason to get divorced, and the party filing need only state that there are “irreconcilable differences” or that the other party is mentally incompetent (legally speaking, not just that one party has this opinion of their spouse).

There are several instances where proving adultery can be very relevant to divorce proceedings, including the following:

1. An award of alimony. Florida Statutes §61.08(1) states, in part: “ The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” Certainly, the judge can consider the adultery when determining alimony. How much or how little the judge considers is up to each individual judge, and the facts of each case.
2. Child custody or time sharing: Florida Statues §61.13(3)(f) states, that the Court, in deciding parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the Court can consider the “moral fitness” of the parties. So if one parent can prove that the other parent’s adultery had or is reasonably likely to have an adverse impact on the child, the judge might limit that parent’s custody or visitation. Again, this is totally within the discretion of the trail judge.
3. Equitable Distribution: Florida statutes §61.075(1)(i) states, in part, that the Court, in in addition to all other remedies available to do equity between the parties, in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. So, if one party can prove that the other had spent funds on a paramour during the course of the marriage, those funds may form the basis for an unequal distribution of marital assets and/or liabilities.
In Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1980), the Court found it was not a case in which an errant spouse destroyed a marriage and now wanted to claim benefits equal to those which would have been provided had it remained intact. The Court in Smith noted: “[E]vidence [of adultery may not] be employed merely to decrease or enhance an award by way of punishment for conduct of which the court may disapprove, when that conduct is not related to the equitable considerations with which dissolution courts should be concerned under our no fault law.”

As it relates to child custody or time sharing, Courts have found that the possibility of a negative impact is not sufficient. Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000). In determining a party’s moral fitness for purposes of custody, the trial court should focus on whether the parent’s conduct has had or is reasonably likely to have an adverse impact. Packard v. Packard, 697 So.2d 1292 (Fla. 1st DCA 1997). Although one parent has committed adultery, it may be in the child’s best interest for that parent to receive custody. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Adultery may or may not have a direct bearing on the welfare of a child of tender years. Id.; see also Farrow v. Farrow, 263 So.2d 588 (Fla. 2d DCA 1972)

While most people have the initial gut reaction to want their spouse to pay for the adultery, oftentimes, when people realize the cost associated with proving such claims versus the benefits, people tend to work more toward resolution than revenge.

The question for most people becomes an analysis of what is to gain from airing out the dirty laundry. Things that can possibly be gained from bringing forth an adultery claim as it relates to alimony or equitable distribution include additional funds from either (or not having to pay alimony or as much alimony), and more time with children in a time sharing plan.

The downsides to proving the adultery can include forever damaging the relationship with your ex-spouse (where children are involved), and possibly damaging the children, the expense associated with proving the adultery (oftentimes the use of a private investigator is required, which can get costly), and the difficulty of proving the adultery (many incidents of adultery involve hearsay testimony, which is not admissible; having eyewitnesses to the adultery, to the extent you would want to prove the adultery in order to alter the equitable distribution, alimony, or time sharing, are rare)

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