Imputed Income for Child Support in Tennessee and Rehabilitative Alimony: Velez v. Velez

Facts: After 12.5 years of marriage, the parties divorced. They have two minor children. During the marriage, Father was in the U.S. Navy and at times deployed overseas. Husband earned $70,000 per year. Mother was predominantly a stay-at-home mother, but occasionally worked minimum wage jobs. She testified she wished to obtain obtain a degree in occupational therapy and enrolled in a nearby college. She estimated the program would take 6-7 years to complete. After a trial, the trial court found Mother to be willfully underemployed and imputed income to her of $8 an hour for 40 hours a week for the purpose of determining child support. The trial court denied Mother’s request for rehabilitative alimony but awarded her $25,000 in alimony in solido and $5,000 for attorney’s fees. Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Imputed Income for Child Support. Mother argued the trial court erred in its calculation of Father’s child support obligation by imputing a salary of $8.00 an hour to her. After reviewing the record, the Court agreed, writing:

The undisputed testimony in the record was that Mother was unemployed and that her only work experience was at sporadic minimum-wage jobs. The current minimum wage is $7.25 an hour. There is no evidence in the record that Mother has earned or would be able to obtain employment that paid more than minimum wage. The evidence to the contrary is that she has limited work experience, a high school education, and never made more than minimum wage.

The trial court found that Mother was under-employed, a finding with which we agree; however, the trial court imputed an income greater than what the evidence indicated Mother would be able to earn. Based upon the evidence in this record, we find that Mother’s imputed income should be based upon the federal minimum wage, which is $7.25.

Rehabilitative Alimony. Mother argued the trial court erred by failing to award rehabilitative alimony.

The Tennessee Legislature has created a strong preference for short-term spousal support over long-term spousal support. The courts have recognized the legislative preference for support aimed at the rehabilitation of the disadvantaged spouse in order to achieve self-sufficiency where possible. Rehabilitative alimony is intended to assist an economically disadvantaged spouse in acquiring additional education or training that will enable the spouse to achieve a standard of living comparable to the standard of living that existed during the marriage or the post-divorce standard of living expected to be available to the other spouse. Courts have noted that carefully adhering to the statutory framework for awarding spousal support, both in terms of awarding the correct type of support and for an appropriate amount and time, fulfills not only the statutory directives but also alimony’s fundamental purpose of eliminating spousal dependency where possible.

The Court held that the trial court erred in failing to award rehabilitative alimony to Mother, reasoning as follows:

In this case, Mother is clearly the economically disadvantaged spouse. She has only a high school education and she has limited work experience at minimum wage jobs, mainly in retail. Her imputed income is based upon minimum wage, which is $7.25 per hour. Assuming she is able to obtain employment and is able to work 40 hours a week for 52 weeks a year, she would make a mere $15,080 annually; Father’s annual income is in excess of $70,000. It is also relevant that Mother’s economic disadvantage is partly due to her contribution as a stay-at-home mother while Father was deployed.

Further, based upon our review of the record and the relevant statutory factors, we find that Mother’s economic disadvantage as compared to Father is very significant, that she is disadvantaged in part due to sacrificing employment opportunities to be a homemaker raising the parties’ children, that she has few separate assets, and that she will remain at a great economic disadvantage without some assistance to acquire additional education or training that will enable her to achieve a reasonable standard of living, albeit not the standard that existed during the marriage or the post-divorce standard of living available to Father.

Based upon the legislative preference for rehabilitative alimony and the facts of this case, we find that the trial court erred in failing to award rehabilitative alimony, either in addition to or instead of $25,000 as alimony in solidoWe, therefore, remand this issue to the trial court for a determination of the appropriate sum and duration of rehabilitative alimony.

Velez v. Velez (Tennessee Court of Appeals, Middle Section, July 31, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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