Wife is Purposely Under-Employed

[Attorney Howard Iken]

MZarycki-Weig v. Weig, July 29, 2009, 4th District Court of Appeal

One of the issues in this case was alimony. The Wife was seeking alimony based on her claim that she was unable to work. The Wife formerly worked at Victoria's Secret and had earned $38,000 / year. At trial, the Wife claimed pain from a previous child birth and two car accidents. She brought as witnesses a vocational rehabilitation specialist and a chiropractor. That was the extent of her evidence. The problem was that the rehab specialist based his testimony on three hours of interview time with the Wife. He had no medical training. The Chiropractor only met with the Wife for 30 minutes.

The husband presented witnesses showing the Wife's personal physical activity was unaffected and that she regularly cooks, cleans, goes on outings to the park and to the mall.

The appeals court upheld the trial court ruling that the Wife was underemployed. The trial court had properly "imputed" income to the Wife. This is a term for a legal fiction - that she was considered to still be earning her former income.

The appeals court noted the Florida Statute that explains "inputation" of income:

(b) Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment 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 as provided in this paragraph; however, the court may refuse to impute income to a parent if the court finds it necessary for the parent to stay home with the child who is the subject of a child support calculation.



The appeals court upheld the trial court judgment.



Attorney Howard Iken


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