Alimony Modification Cases – Proving Voluntary Unemployment/Underemployment
If a Former Spouse’s income is reduced or eliminated, he or she may file a Petition for Modification. A modification of alimony is typically appropriate if there is a (1) substantial change in circumstances, (2) that was not contemplated at the time of the entry of the agreement or Final Judgment, and (3) that is sufficient, material, involuntary, and permanent in nature. Typically, a former spouse, who is opposing the modification, will argue that the decrease in income is voluntary, meaning that the former spouse has deliberately reduced his or her income or voluntarily quit his or her job. While many attorneys and judges believe that the spouse requesting the reduction in alimony must prove that the reduction in income is involuntary, this is incorrect.
In Florida, the spouse defending the alimony reduction must establish that the former spouse, who is requesting the alimony modification, took actions to deliberately reduce his or her income or that the former spouse is not being diligent in his or her efforts to earn an income.
The burden is on the party asserting that the other spouse is voluntarily unemployed or underemployed
“The burden is on the party asserting that the other spouse is voluntarily unemployed or underemployed. Andrews v. Andrews, 867 So. 2d 476, 478 (Fla. 5th DCA 2004) (citing Blanchard v. Blanchard, 793 So. 2d 989, 992 (Fla. 2d DCA 2001)).” Gillette v. Gillette, 42 Fla. L. Weekly D1947 (Fla. 4th DCA September 6, 2017). Further, if you are requesting an alimony modification, you do not need to present any evidence that the underemployment is voluntary or involuntary, unless it is challenged by your Former Spouse.
When defending an alimony modification case, the defending spouse must present competent substantial evidence to establish that the former spouse acted in a less than diligent and bona fide manner to find employment paying at a level equal to that formerly enjoyed. Freilich v. Freilich, 897 So. 2d 537, 539 (Fla. 5th DCA 2005). Typically, this is demonstrated to the court by subpoenaing employment records from the former spouse’s prior employer to show that he or she took actions to deliberately be terminated or that he or she voluntarily quit. Further, the spouse defending against the alimony claim must submit evidence to the court to impute income to demonstrate that the former spouse is able to continue to earn an income similar to his or her income at the time of the previous judgment or agreement. This is typically done through expert testimony. A spouse may also claim that he or she has become disabled and is no longer able to work. Depending on the nature of the disability, the defending spouse may need to subpoena medical records as well as employment records to determine whether the nature of the disability is legitimate. A spouse may also look into hiring a private investigator to document the former spouse’s physical condition to show that he or she has the ability to work and complete tasks.
When handling a modification of alimony case, it is important to be aware who carries the burden of proof for each element. Failing to present the proper evidence to support or defend your claim could lead to an unjust and inequitable outcome.