By: Mike Gora
Q: My ex-husband and his new wife have put together a plan to cut
down the alimony and child support that I was awarded by a judge in
Delray two years ago. He has filed a Petition for Modification, which
is now pending.
My combined alimony and child support award was for a total of
$4,500 a month. For many years, my husband had operated his own
businesses. He prided himself on being an entrepreneur. He would
start a new business, grow it and sell it, or would take over a failing
business, fix it and sell it after running it for a while.
He met his new wife while we were married. He was between
businesses, and was negotiating to buy her business. He wound up
buying more than just the business.
After our divorce, he went to work for her company at little more
than minimum wage, with an office job. They deny it, but he is really
running the place and “fixing” her business, as he would have had
he bought it. Now his income, instead of being, net, $15,000 a
month is, net, $5,000 a month. The new support he wants the judge
to award is a total of $1,000 a month. I am a teacher. I could not
afford to keep my house and raise the two kids on my salary plus that
support. What do you think the judge will do?
A “The judge will have to apply the rules governing modification of
judgments and imputation of income. For a downward modification,
the judge has to find that the change in financial circumstances was
permanent, involuntary and significant. Here it appears that if your
former husband voluntarily sold a business that he was running
before the divorce, and now makes substantially less.
His history of buying and selling businesses may give the judge the
basis to find that his change was not permanent. The court might
deny the change on the modification law alone. Even if it does not,
the court could impute income to your “Ex”. That means, ignore his
present, lower, income and base the support requirements on an
artificial number based upon his past track record.
The law on the imputation of income is as full of potholes as any
we deal with on a regular basis. Appellate decisions are not as
consistent as lawyers would like. Often a denial of imputation is
based upon lack of proof of specific job availability.
On the other hand, our local appellate court recently ruled that
income should have been imputed to a man in a similar situation
to your former husband “based upon his previous work experience
in successfully running two companies,” even though there was no
proof of a specific opportunity.
The personal relationship between your “Ex” and his new boss, and
proof that his job duties usually pay much more, may not pass the
judge’s “smell test,” and lead to your keeping the support at current
Michael H. Gora has been certified by the Board of Specialization
and Education of The Florida Bar as a specialist in family and
matrimonial law, and is a partner with Shapiro Blasi Wasserman &
Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at
mhgora@sbwlawfirm.com.