Alimony and Child Support – A Second Job and Overtime Count
Florida statutes and case law require trial judges to consider all sources of income available to both spouses when determining need and ability to pay alimony. There are several factors the court must consider in determining whether or not to award alimony, but the primary considerations are one spouse’s need for alimony and the other spouse’s ability to pay alimony.
In a recent case that was tried in Tampa, the trial judge denied alimony to a wife even though the evidence was that the husband earned twice as much as the wife and ruled that the husband did not have the ability to pay alimony.
The Second District Court of Appeal reversed the trial judge. That court ruled that trial judges must consider all income available and that includes overtime pay and income from second jobs. It must be pointed out that the second job income in this case was historically earned by the husband. It was not a temporary situation to help him get through the dissolution transition time.
In deciding that the trial judge was wrong in finding that the husband did not have the ability to pay alimony, the trial judge failed to consider the husband’s monthly payment for a real estate investment or his monthly voluntary contribution to his 401(k) plan.
Things obviously change during a divorce. Therefore, how we spend money, save money, and put money into a retirement plan may not be able to continue. For example, voluntary contributions to a 401(k) or other types of pension plan become what are referred to a add-backs. That is, that money is actually available for alimony and child support, so it is added back to income for calculation purposes. Most people don’t think that is fair. However it’s the law, and judges are required to do so.
The issues for calculating income are the same for child support. While the issue of imputed income was not present in this case, the general rule is that the trial judge may impute income when considering alimony and must impute income in calculating child support. The different philosophies, of course, relate to making sure children are properly cared for, supported and do not become a charge to the state.
The spouse who receives majority time sharing (the old custody) is not necessarily required to be employed. If the spouses have agreed that one of them would be a stay-at-home-parent, or if there is some disability which would require a spouse to stay at home to care for a sick or disabled child, among many other scenarios, then income will not be imputed to that spouse.
When appropriate, the amount of income that will be imputed is the income the spouse could earn by using his or her best efforts to obtain employment. Best efforts doesn’t mean working hard to get just any job, but working hard to get a job for which he or she is qualified or for which he or she can be trained or educated to do.
As with most other issues in the divorce process, alimony and child support are emotionally charged. The alimony issue certainly has two sides, but the child support issue is clear, since everyone should want what’s best for their children, and that requires paying the proper child support.
K. Dean Kantaras is a Clearwater family law attorney limiting his practice to family law matters, including custody, related appeals and immigration. As a family lawyer in Clearwater, he is a member of the bar of the Supreme Court of the United States, The Florida Bar, and Clearwater Bar Association Family Law Section. Mr. Kantaras is Board Certified by The Florida Bar in Marital and Family Law. His offices are located at 3531 Palm Harbor Boulevard in Palm Harbor, 1014 U.S. Highway 19 North, Suite 110 in Holiday and 1930 East Bay Drive in Largo. He can be reached at (727) 781-0000, fax: (727) 938-3939 and emailed at kdk@kalawgroup.com.
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