In awarding alimony income can be imputed to an unemployed or underemployed spouse under certain circumstances. Florida Statutes § 61.30(2)(b), Florida Statutes, states that monthly income can be imputed to an unemployed or underemployed spouse if that spouse's unemployment or underemployment is voluntary. In a case captioned Dottaviano v. Dottaviano, the Florida Court of Appeal recently stated that the trial court is required to utilize a two-step analysis in deciding whether or not to impute income to an underemployed or unemployed spouse. First, the court should determine whether the spouse's termination of employment was voluntary. Second, the trial court should decide whether the former spouse' s subsequent unemployment or underemployment was the result of the former spouse's pursuit of his or her own interests or the result of a less than diligent efforts to find a job that pays income at a level equal to or better than that formerly received.
In the Dottaviano case, the Court of Appeal held that in awarding alimony the lower court failed to make any findings that the Wife was voluntarily underemployed or unemployed, and also did not consider evidence that was presented that the former wife was actively attempting to find a part-time or full-time job, but was unsuccessful.
Additionally, in Dottaviano v. Dottaviano, the Florida Court of Appeal stated that the spouse contending that income should be imputed to an underemployed or unemployed spouse has the burden of showing that the unemployed or underemployed spouse is employable and that jobs are available for that spouse. Because the erroneous imputation of income by the lower court affected the Husband's alimony and child support obligation, the final judgment was reversed and remanded to the trial court.
In Dottaviano v. Dottaviano, the Florida Court of Appeal also reversed the trial court's order awarding the husband exclusive use and possession of the marital home the children reached the age of majority. The Court of Appeal stated that where the parties' incomes are inadequate to meet their debts, living expenses and the expense of maintaining the marital residence, exclusive use and occupancy of the home is unwarranted and the house should be sold. This is especially so where the husband and wife lived in the home for a short period of time, they did not have any other significant marital assets, and there was a large difference in earning power between the spouses.
To speak with a Wellington, Florida divorce attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273.Alimony