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FINDING ALL THE “INCOME” IN DIVORCE (ALIMONY), CHILD SUPPORT AND PATERNITY CASES

One of the important functions of your family law attorney is to determine all sources of income for husbands/wives and/or fathers/mothers for alimony and/or child support purposes. Determining income can be very tricky or very easy depending on the facts in each case. For example, if both parties are W-2 wage earners (like school teachers, for instance), determining income is just a matter of looking at pay statements. Assuming both parties are not voluntarily underemployed or voluntarily unemployed, this can be typically simple.

But if one or both parties are voluntarily underemployed (for example, voluntarily cutting back on overtime or work hours) or voluntarily unemployed, it may be necessary to have an expert witness retained to demonstrate what that party is truly capable of earning in the most-suitable job at the income level prevailing in his or her community.

Defining ‘income’ can also be tricky. This definition would include wages, regularly received bonuses, overtime and the like. Beyond employment, income can include regular gifts from parents, earnings from stock and retirement accounts (active or passive), and mandatory or minimum withdrawals from an I.R.A. because they resemble a defined-benefit pension plan with mandatory payments created under a set formula.

If it is too difficult to determine income because it may be ‘hidden’, forensic accounts who understand Florida family law can be helpful. Often, they will look at the other side of income – expenditures – to see if there is any debt associated with expenditures. If not, then income must be available somewhere to cover the expenditures debt-free.

Let’s look at alimony: Florida law provides a number of statutory criteria for determining entitlement to and an amount for alimony. The length of the marriage is one key determinant as well as the demonstrated ‘need’ for one party for the alimony and the ‘ability’ of the other party to provide it. The determination of ‘need’ and ‘ability’ is a product of assessing the income available to each party. Thus, a key factor is the determination of income for each party.

Now, let’s look at child support: Florida law basically provides that child support is calculated on two criteria – the net available incomes of father and mother, and the amount of overnights the child has with each parent. These numbers are placed into the statutory Child Support Guidelines Worksheet and child support is determined. Again, discovering ‘income’ is crucial.

As you can see, it is crucial to work with a knowledgeable and experienced family law attorney in any case involving alimony and/or child support. This would include divorce and paternity cases, and cases involving modification of alimony or child support. These income numbers can and will have potentially long-term consequences and must be thoroughly prepared in each case.

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