Alimony Family Law

4 Common Errors Made in Alimony Cases

4 Common Errors Made in Alimony Cases
Written by Francis King

The 4 most commonly made mistakes in alimony cases that you need to read…

1. Using Gross income instead of Net Income

Trial courts and attorneys often erroneously rely upon gross income rather than net income to calculate alimony. Appellate courts have repeatedly held that alimony should be based on the net income of the payor.

2. Failing to Impute Income to the payee

A court may impute income if a party is earning less than he or she could, based on a showing that he or she has the capability of earning more by the use of his or her best efforts. The concept of imputing income is to require those who are able to work to do so.

To impute income for purposes of determining alimony, a trial court must find that the unemployment is voluntary. A court may also impute income when a spouse or former spouse is voluntarily underemployed, which means the spouse is voluntarily earning less to avoid working or to avoid making alimony payments. However, when a spouse ceases full-time employment to seek enhancement of his or her education, the courts may look to see if the spouse is acting in the best interest of the support recipient when determining whether to impute income.

If the court determines that it is appropriate to impute income, the level of income imputed must be based on recent work history, occupational qualifications, and prevailing earnings level in the community. It is error for a trial court to base the amount of imputed income solely on the past earnings of the parent or spouse without consideration of the other factors.

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3. Alimony award exceeds the stated need

The amount of alimony awarded to a spouse, when coupled with the amount of income imputed to that spouse, cannot exceed the spouse’s stated need. If a court awards more alimony than the party requested without sufficient findings in the final judgment to support the increased award, the award must be reversed. In addition, even though there may be ample evidence that the parties enjoyed a high standard of living during the marriage, there still must be evidence of the stated need of the spouse requesting alimony after the marital home is sold and the divorce is finalized.

4. Alimony award not commensurate with standard of living established by parties during the marriage

The stated purpose of permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spouse is not shortchanged. This requires the trial court to ensure that each party’s standard of living after the marriage comes as close as possible to the lifestyle of the parties during the marriage, given the available financial resources. The applicable standard of living is the most recent standard of living shared by the parties.

Article references:
www.dewittlaw.com/family-law/6252/5-common-errors-made-in-alimony-cases/

About the author

Francis King

Mr. King is a member of the Nashville Bar Association, and serves on its Circuit and Chancery Court , Domestic Relations and General Sessions Court Committees. In addition to Tennessee, Mr. King is admitted to practice law in New York and Massachusetts, the United States Court of Appeals for the Second Circuit and the United States District Courts for the Middle District of Tennessee and the Southern and Eastern Districts of New York.