When one parent is voluntarily unemployed or underemployed in a time-sharing modification, it matters when a party is seeking family law attorney’s fees in Miami.

When a party is requesting their Miami family law attorney’s fees get paid in a parenting plan or time-sharing modification matter, the primary consideration a trial court must factor in determining the award for fees are need and ability to pay. § 61.16(1), Florida Statutes (2018). South Florida courts may also look at relevant nonfinancial circumstances, such as whether the litigation is brought or maintained primarily to harass the other party or to stall proceedings when deciding entitlement for family lawyer attorney’s fees.

A court may impute income to a party to decide his or her ability to pay attorney’s fees. Income can be imputed to the payer, payee, or both. However, even if income is correctly imputed to a party, his or her reasonable and necessary monthly expenses must be weighed when determining whether the other party has the ability to pay a fee award for a family law attorney, or a need for such an award.

Before a Miami trial court decides whether to impute income the court must consider whether a party is, for example, voluntarily unemployed or underemployed. The trial court may impute income only if it finds that the unemployment is from “(1) the party’s pursuit of his or her own interests, or (2) the party’s less-than-diligent-and-bona-fide efforts to find employment.” Andrews v. Andrews, 867 So. 2d 476, 478 (Fla. 5th DCA 2004). When a party voluntarily becomes unemployed or underemployed, income that party is capable of earning may be imputed to determine an appropriate award of support. The amount of any income imputed must be based on obligor’s job qualifications and history, and prevailing wages in the community. Even if a court finds a party voluntary underemployed or unemployed, an actual need must be shown to obtain an award of attorney’s fees. A Miami court is likely to award family attorney’s fees to a needy party who cannot otherwise hire competent counsel without being forced to deplete assets, alimony, or saving because of lacking income or disposable cash so long as the opposing party has an established ability to pay.

If a party, let’s say – for example, earns $80,000 a year then quits his or her job and if their next job pays $30,000 per year, the court will likely refuse that party a request for their family law attorney’s fees, unless the party had made a diligent, good faith effort to find employment that would replace his previous salary, but was unable to do so AND the reason for quitting was not voluntary. However, when a party has a voluntary reduction in income imputing their prior income for attorney’s fees consideration is more likely, if they’re the party requesting the other side pay their family lawyer fees.
Imputing income requires expert testimony and an attorney with good courtroom skills to present the necessary evidence. At Thomas-McDonald Law, we have successfully handled these types of family law cases in Miami, Florida. If you need help, contact us today for a complimentary 30-minute consultation with family law attorney Aislynn Thomas-McDonald.

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