In Determining Alimony in My Florida Divorce, Can Income Be Imputed Through Marital Assets?

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

1260843_protect_your_money.jpgFlorida divorces require that assets, including all accounts (IRAs, Mutual Funds, etc.) be divided equally by the parties. Once the assets are divided equally, the income available to the parties may be construed differently and impute certain monthly allowances to a party when determining if alimony will be awarded. In a recent Florida case, Neiderman v. Neiderman, 36 FLW D927 (Fla. 4th DCA May 4, 2011), the court found that the Wife could be imputed income from the division of an IRA. While IRAs do have a penalty for withdrawals made before age 59 and 1/2, there is a provision under IRS Regulation 72(t) that allows equal periodic payments from an IRA without penalty. This is done only if the payments will be for more than five years; the life expectancy of the party; and if there is a reasonable rate of return. Under this provision, the wife in Neiderman could withdrawal $9,000 per month without invading the principal. Therefore, the wife was imputed $9,000 per month income only from the IRA as imputed income for determining her alimony award since her husband made $500,000 per year and she made $35,000 per year.
Given market changes, she may be able to apply for a modification of alimony if there is a deviation of at least 15% in her available income.

If you have questions regarding your divorce, then you should speak with a family law attorney to best understand your rights and options.