Imputed income for child support

[greenstone]

I know there are several attorneys here and many who have been through divorces so I am hoping someone can clarify when imcome can be imputed. I know it varies by states, I'm in Florida.
I have friends who are going through a divorce with two school age children. They have been married about 13 yrs during which she worked full time until this past September when her current position was eliminated. She decided (without his input) that she would now be a SAHM even though her job loss coincided with both children now being in school full time. She filed for divorce in February and has made no attepmpt to find a job before or after filing. In Florida, CS is determined via a set calculation based on both parents income. Her lawyer is arguing that her income is 0 and there is no legal obligation to impute it because she is a SAHP.

This is the part of the Florida statute covering imputing income:
"(b) Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent's part, absent 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; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child. "

So my question is: because her job loss was involuntary, is her income $0 even though she has a long work history and is choosing not to work or look for work?

Her lawyer is offering him 50/50 custody only if he concedes most of the retirements accounts to her (their only real assets) and the house to her. If he fights, her lawyer told him he'll still lose the $$ and the kids (80/20), because the judge favors the moms especially SAHMs. His lawyer hasn't made a peep. I told him he needs a new lawyer. I don't know if she is going for alimony, but I don't think she is.

[HoneyBBQ]

No answer on the money, but I call bull pucky on the custody arrangements. Almost all custody is joint these days and no judge will make that an issue depending upon the other financial aspects of the arrangement as you are suggesting. He needs a new lawyer.

[Deleted]

I would call her bluff, find a new lawyer and get ready for a fight.

[greenstone]

I absolutely agree he needs a new lawyer and he sees that she is worthless, but he's paid her a $4k non-refundable retainer because she told him "I will fight for you". Instead of fighting at mediation, she told him "you're getting screwed and there is nothing you can do about it". Coming up with a new retainer would be extremely hard now and he has no guarantee that it will change the outcome.

Before they got the lawyers involved they had both agreed to 50/50 custody, but her lawyer is using the kids as bargaining chip for the rest. The child support is a big issue too, he wants her income imputed to reflect her previous earning level. Her lawyer said that that is not done. When he disputed it, her lawyer said "prove it". So can she claim she is a SAHM because she didn't for work six months before she filed after working for 13 years of the marriage? When does someone go from unemployed to SAHP? 2 weeks, 3 months, 6 months, 1 year? Can she successfully argue that she is involuntary unemployed because her job was eliminated, even though she has made no attempt to look for work in 9 months.

Friends who are attorneys (not family law) said take the offered 50/50 custody and fight over the money later. But if he agrees to the financial offer how can he immediately turn around and fight it?

[rileyoday]

When I was divorced in FL. income was imputed by an average of what was earned in the past. Even if she has no earnings the court will use an amount for her side of CS. And since she is degreed it wont be minimum wage.

I agree the custody would be 50%. Every other weekend every other holiday. Pretty simple there.

If they live in the same town after the dust settles the children decide when they want to go. You can drag a kid to your place on schedule but do you want to?

If these are not agreed in mandatory mediation then let the judge decide. I believe the CS will be by FL guidelines. Throwing more legal fees in wont change the outcome.

[greenstone]

The kids will definitely want to be with him as he is the main caregiver parent and his bond with the kids is 10x stronger than with their mother. He has a great case for 80/20 in his favor but he is trying to play fair and go for an even split. The kids will still end up with him most of the time as she likes a lot of "me" time. I told him to keep a calendar of when the kids are with him so he has the facts to get the custody changed later. If all goes well with financing, he will be buying a house in the same neighborhood where they live now so no disruption to the kids routine. The problem is her lawyer is a blustering, lying bully who is using threats and scare tactics against him and his lawyer is sitting there like a bump on a log. It's easy to say what he should do, but he is being pulled in a thousand different directions right now and so emotionally invested that it's nearly impossible to pull back and see everything clearly.

[Deleted]

He can fire his lawyer and get a refund on whatever amount is unused from the retainer.

[HoneyBBQ]

"He has a great case for 80/20 in his favor "

Actually, no he doesn't. Unless the mother is abusive (which you haven't mentioned), both parents deserve equal time with their children despite which one the kids like more. It's not "playing" fair, it IS fair and it's what's RIGHT.

[Colleenz]

There are two divorces - the emotional divorce and the legal divorce. He needs to keep them seperate.

I would suggest he ask the court to appoint a gaurdian ad litem for the children. This will help sever the custody issue from the asset division issue. He may want to remind the wife that lawyer fees come out of the joint property so if she wants to keep using these crappy bullying tactics all it will do is reduce the amount of money they both walk away with, and it is not going to change the outcome.

Income should be imputed in this case, but he should also retain a lawyer who has uccessfully done this in other cases.

[greenstone]

"Actually, no he doesn't. Unless the mother is abusive (which you haven't mentioned), both parents deserve equal time with their children despite which one the kids like more. It's not "playing" fair, it IS fair and it's what's RIGHT. "

You're right. It is just frustrating that her lawyer is claiming a judge will give her 80/20 because she is a SAHM when in reality she is barely involved in their lives even though they live under the same roof. All the kids do is watch TV and movies when they are home alone with her because she doesn't interact with them much and when she does she constantly argues with and yells at them. She refuses to see that she won't be able to provide them a home without a job, she thinks CS will magically pay all the bills.

Does a lawyer have to refund any unused retainer? His lawyer is saying it is nonrefundable.

[Colleenz]

He may want to name drop some f this to his current lawyer

www.abrahamwatkins.com/Firm-News-Articles/Non-Refundable-Retainer-More-Refundable.shtml

[swamp]

::Does a lawyer have to refund any unused retainer? His lawyer is saying it is nonrefundable. ::

His lawyer is full of it. Ethical guidelines governing attorney conduct don't allow for nonrefundable retainers in matrimonial cases.

[HoneyBBQ]

Jun 14, 2011 8:15:39 GMT -5 greenstone said:

"Actually, no he doesn't. Unless the mother is abusive (which you haven't mentioned), both parents deserve equal time with their children despite which one the kids like more. It's not "playing" fair, it IS fair and it's what's RIGHT. "

You're right. It is just frustrating that her lawyer is claiming a judge will give her 80/20 because she is a SAHM when in reality she is barely involved in their lives even though they live under the same roof. All the kids do is watch TV and movies when they are home alone with her because she doesn't interact with them much and when she does she constantly argues with and yells at them. She refuses to see that she won't be able to provide them a home without a job, she thinks CS will magically pay all the bills.

Does a lawyer have to refund any unused retainer? His lawyer is saying it is nonrefundable.

My H's ex-wife said the same thing, and took us to court twice to try to take away custody (they have joint, though they live with her). The last time we went the judge said he'd hold her in contempt the next time she wasted the court's time with her bullsh*t. 20 years ago it was standard the mom be awarded custody. This is not the case any more and don't let your friend get hoodwinked into thinking he has to pay extra to have what's rightfully his (time with his children).

[Gardening Grandma]

I'm with the posters who say your friend needs a new attorney. When my son divorced two years ago, he wanted joint custody. His ex fought for full custody. She presented herself as the perfect SAHM and painted him as a violent abuser. The court ordered a guardian ad litem (GAL) to investigate and make a recommendation. After a very thorough investigation, she recommended full custody to HIM with minimal 2 weekends/mo) visitation for her. And she has to pay child support.

Your friend needs to find a new attorney (get recommendations from other attorneys and get one who does family law). Ask the new attorney to deal with the "non refundable" issue if the former attorney refuses to refund.

The custody issues is a separate issue from the financial one. She doesn't get to bargain the kids for assets. But is IS going to cost money. The more she wants to fight (and her attorney may well be encouraging her to fight because it's profitable for him), the more it will cost both of them.

[zibazinski]

She is going to be in for a nasty surprise as Florida is VERY unfriendly to women and children in divorce. He needs a new attorney, his is giving him the "deal."

[Clever Username]

Simple.... He needs to stall.
It's playing severe hardball, but it's a good tactic.

Simply put, she will likely not be able to continue life as a SAHM, living on only child support.
She'll need to get a job to support herself and her kids. Thus putting an end to her current arguement.

A skillfull attorney should be able to show that math as well.

[pepper112765]

Well since she doesn't have a job, she should not be the custodial parent. Isn't that what happen to the cancer victim -- there was a story on one of these threads -- whose husband was awarded custody of the children?

[Knee Deep in Water Chloe]

In my state, each parent is counted as making at least minimum wage, regardless of whether or not he or she has a job.

[Deleted]

Not that it matters, but did your friend encourage his wife to be a SAHP when she lost her job? He wouldn't be the first to see it as an opportunity to collect unemployment while cutting out the child care costs. It would also mean less familial stress because she could pick up the slack on household chores, etc. Only now it's not so great because she's filed for divorce with no income.

There are two sides to every story. I also find it curioius that every guy described as getting a divorce on here, including friends of friends, is doing all the caregiving.

[greenstone]

First, I am not trying to debate the issue of custody/childcare. I just wanted to know if anyone has any experience with the difference between a "voluntarily unemployed parent" versus "SAHP" related to imputed income for CS, not custody.

Second, I whole-heartedly agree with tbird's last post. But to say: " that every guy described as getting a divorce on here, including friends of friends, is doing all the caregiving." is a gross and unfair exaggeration. There are plenty of female regular YMers who post about bearing the brunt of the physical, financial and emotional responsibility of child-rearing. Are they the only posts that are believable? I didn't say my friend's wife was not a contributor to the home and household and doesn't provide for the children. He IS the primary hand's on caregiver, she is secondary (not absent). The balance has shifted some since she is not working, but the scales still tip in his favor. Since the kids are in school or summer camp for most of the day, she does not spend a huge amount of extra time with them.
As a society, we have been pushing for decades the ideal that men should be fully active participant in child-raising and care of the home. But how often is a true 50/50 split achieved? Usually one spouse that the lead in one area while the other takes on more responsibility in another area. Shouldn't we be happy more men are choosing to take on the role of primary caregiver, or are we stepping on sacred Mommy territory by suggest a man could fulfill that role. Why take a "yeah, right" attitude to men being primary caregivers?

[midjd]

I don't think that's what anyone is saying... but in general, I find statements like "I am the primary caregiver" more believable than "my friend is the primary caregiver." Then when you get out into "my coworker's sister says..." territory (we've had quite a few custody/CS threads based on this type of premise) it gets even less plausible.

Anyway - I don't think the YM women's posts are more "believable" because of their gender, but because they are first-person narratives. There are a few guys on here who are primary caregivers, I don't think anyone disbelieves their stories just because they're male.

[greenstone]

Anyway - I don't think the YM women's posts are more "believable" because of their gender, but because they are first-person narratives. There are a few guys on here who are primary caregivers, I don't think anyone disbelieves their stories just because they're male.[/quote]

Good point. But the original statement was gender specific and as I read it, it was intended to be gender specific. If not, then great. I mean no offense to SS. This is an anonymous message board, there is no reason anyone should believe anything written here.

[Colleenz]

Really? I believe evrything written here. Especially the threads on P&M

[greenstone]

I keep seeing references to P&M threads on the other boards, but I haven't ventured over there yet. I kinda scared at what I will find.

[Wisconsin Beth]

Jun 15, 2011 12:41:35 GMT -5 greenstone said:

I keep seeing references to P&M threads on the other boards, but I haven't ventured over there yet. I kinda scared at what I will find.

I peek in to P&M every once in a while but I rarely linger (or post.)

[cme1201]

Jun 15, 2011 12:41:35 GMT -5 greenstone said:

I keep seeing references to P&M threads on the other boards, but I haven't ventured over there yet. I kinda scared at what I will find.

Well I'll tell ya what you will find in the land of P&M.

You will find the most vile, disgusting, abusive, hate filled, fear mongering people to exist in the world, conversely you will find the most loving, helpful, accurate, joyous people that can exist in the the world.

Now all you need to do is pick a political side and find the posters you like best, we don't bite but, we do roast Weiners

;D

[Gardening Grandma]

Jun 15, 2011 12:41:35 GMT -5 greenstone said:

I keep seeing references to P&M threads on the other boards, but I haven't ventured over there yet. I kinda scared at what I will find.

Wear your tin foil hat.... ;D

[greenstone]

Jun 15, 2011 16:28:55 GMT -5 Gardening Grandma said:

Wear your tin foil hat.... ;D

Oh dear, it's being to sound too much like the people I know IRL. I think I'll stick with YM, WIR, SS and a dash of EE.

[Knee Deep in Water Chloe]

Jun 15, 2011 14:02:36 GMT -5 cme1201 said:

Now all you need to do is pick a political side and find the posters you like best, we don't bite but, we do roast Weiners

;D

[bring in the new year]

His lawyer has already made two potential untrue statements - she would fight for him and the retainer is nonrefundable.

Now if this has been going on for awhile and she has been sending him bills showing the retainer usage, then he may have spent the retainer already. But then he should have bills with hours and rates - not a flat statement that the retainer is non refundable.

Have him call the Florida bar and repeat those two statements and ask for their opinion.

I would get a new lawyer.

As for your original question, while your answer makes sense to me, it's a lawyer's question so for him to have a good answer (other than bend over and smile) he needs a good lawyer who knows the state law and the state courts.