Determining a spouse’s true income is often the most contentious part of a divorce, especially when one party is self-employed or owns a business. Many people believe that if a spouse claims to earn very little, the court’s only option is to “impute” income based on what they could earn. However, the recent Florida appellate decision in Cohen v. Alkobi (2025) highlights a critical legal distinction: the difference between proving what a spouse actually makes right now(present income) and what they should be making (imputed income). For anyone navigating a high-stakes divorce, a Tampa divorce lawyer is essential to ensure that the court uses the correct legal standard to uncover hidden earnings.
In this case, the court clarified that when a spouse’s business and personal finances are “commingled,” a judge can find their actual income is much higher than reported without having to meet the strict statutory requirements for imputation. If you are dealing with a spouse who underreports their income, the expertise of a Tampa divorce lawyer can help you present the testimony and evidence needed to secure a fair award for alimony and attorney’s fees.
The Facts of Cohen v. Alkobi
The case of Avivit Cohen and Yossi Alkobi centered on the wife’s request for temporary attorney’s fees and costs. The trial court referred the issue to a general magistrate, a judicial officer who hears evidence and makes recommendations to the judge.
The husband self-reported an annual income of only $50,000. However, the wife presented evidence of “severe co-mingling” between the husband’s business and personal finances. The general magistrate rejected the husband’s $50,000 figure and instead determined his income was $200,000 annually based on his 2023 business earnings, historic earnings, and his failure to prove reasonable business expenses.
The trial court initially approved this recommendation but later vacated it. The trial judge argued that the magistrate had “imputed” income without making the necessary legal findings—specifically, that the husband was voluntarily underemployed. The wife appealed, arguing the trial court overstepped its role.
Present Income vs. Imputed Income
The core of the Cohen v. Alkobi ruling is the distinction between two different sections of Florida law:
- Present Income (Section 61.30(2)(a)): This is a finding of what a person is actually earning at this moment. A court can determine this based on testimony, credibility, and bank records, even if a spouse’s tax returns say otherwise.
- Imputed Income (Section 61.30(2)(b)): This is a “hypothetical” income assigned to someone who is voluntarily unemployed or underemployed. To use this, the court must prove the spouse is intentionally working less than they are capable of.
The appellate court found that the general magistrate had actually made a present-income finding. Even though the magistrate used the word “impute” in the order, the court looked at the substance of the decision. Because the magistrate believed the husband was actually earning $200,000 but hiding it through his business, it was a finding of existing earnings, not potential ones. A Tampa divorce lawyer knows that mislabeling these terms is a common error that can lead to unnecessary appeals.
The Challenge of Commingled Finances
“Commingling” occurs when a business owner uses company accounts to pay for personal expenses like car payments, vacations, or home utilities. In many Tampa divorces involving small business owners, the business is treated like a personal “piggy bank.”
As your Tampa divorce lawyer will explain, Florida law allows a court to add these personal benefits back into a spouse’s gross income. In the Cohen case, the magistrate found that the husband’s lack of proof regarding “reasonable business expenses” made his self-reported income unreliable. When a self-employed spouse fails to provide clear records, the court can use business revenue and historic earnings to estimate their true financial status.
The Role of a General Magistrate vs. Trial Court
In Florida, when a case is referred to a general magistrate, the trial court acts like an appellate judge. The trial judge cannot re-weigh the evidence or decide they would have reached a different conclusion. They are limited to two questions:
- Was there “competent, substantial evidence” to support the magistrate’s findings?
- Did the magistrate apply the correct legal standards?
In Cohen v. Alkobi, the trial court tried to set aside the magistrate’s $200,000 figure because bank records weren’t admitted as formal documents. The appellate court reversed this, noting that testimony and credibility findings are enough to constitute competent, substantial evidence. You don’t always need a “smoking gun” document if the testimony clearly shows the reported numbers don’t add up.
Why This Ruling Matters for Temporary Relief
Temporary relief (alimony and attorney’s fees awarded while the divorce is still pending) is meant to “level the playing field.” If one spouse has all the money, they could potentially out-litigate the other.
By confirming the $200,000 income figure, the appellate court ensured the wife could receive the temporary attorney’s fees ($18,300) and costs ($15,820) she needed to move forward. For many clients, the help of a Tampa divorce lawyer in securing these temporary funds is the difference between a fair settlement and being forced to accept a bad deal due to financial exhaustion.
Proving Income Without “Stale” Data
One of the husband’s main arguments was that the magistrate relied on a five-year-old tax return. However, the appellate court noted the magistrate also used 2023 revenue testimony and credibility findings.
A Tampa divorce lawyer will often use forensic accountants to bridge the gap between old tax returns and current lifestyle. If a spouse claims to make $50,000 but lives in a $2 million home and drives a luxury vehicle, the “lifestyle analysis” becomes powerful evidence of present income, regardless of what the tax returns say.
Lessons for Self-Employed Spouses
If you are a business owner going through a divorce, the Cohen v. Alkobi case is a stark reminder to keep your finances separate.
- Keep Meticulous Records: If you cannot prove what is a “reasonable and necessary” business expense, the court may count all business revenue as your personal income.
- Avoid Commingling: Using business funds for personal bills creates a “red flag” that can lead to a much higher income determination.
- Credibility is Key: If a judge or magistrate finds your testimony about your income is not believable, they have broad authority to set a higher figure based on other evidence.
Frequently Asked Questions
What is the difference between revenue and income for a business owner? Revenue is the total amount of money the business brings in. Income (or profit) is what is left after “ordinary and necessary” business expenses are paid. In a divorce, a Tampa divorce lawyer will fight to ensure only legitimate expenses are deducted.
Can a judge decide my income is higher than my tax returns show? Yes. Florida courts recognize that tax returns do not always tell the whole story, especially for self-employed individuals. Testimony about your lifestyle, business revenue, and historic earnings can all be used to determine your “present income.”
What happens if a general magistrate is assigned to my case? A magistrate hears evidence and makes a “Recommended Order.” You have a limited time to file “exceptions” (objections) if you disagree with their findings. If you don’t file exceptions, the judge will usually sign the order, making it a final court order.
How do I prove my spouse is hiding income through their business? A Tampa divorce lawyer will typically use “discovery” to get business bank statements, credit card records, and general ledgers. A forensic accountant can then perform a “lifestyle analysis” to show that their expenses exceed their reported income.
What are “in-kind” payments? These are benefits provided by a business or third party that reduce your living expenses, such as a company-paid car, cell phone, or housing. Under Florida Statute 61.30, these are added back into your gross income for support calculations.
Can I get the other spouse to pay my attorney’s fees before the divorce is over? Yes, this is called “Temporary Attorney’s Fees.” The court looks at your “need” and the other spouse’s “ability to pay.” The Cohen v. Alkobi case shows that establishing the other spouse’s true income is the first step in winning this motion.
What is “competent, substantial evidence”? It is evidence that is “sufficiently relevant and material” that a reasonable mind would accept it as adequate to support a conclusion. It can include testimony, documents, or a combination of both.
Why did the appellate court reverse the trial judge in this case? The appellate court found that the trial judge incorrectly re-labeled a “present-income” finding as “imputed income.” By doing so, the trial judge held the magistrate to a stricter standard than was required by law and improperly re-weighed the evidence.
Conclusion
The ruling in Cohen v. Alkobi is a critical win for transparency in Florida family law. It empowers courts to look past self-reported numbers and “impute” the reality of a spouse’s financial situation as present income. If you suspect your spouse is commingling funds or underreporting their earnings to avoid their obligations, you need a Tampa divorce lawyer who knows how to use these appellate standards to protect your rights.
McKinney Law Group: Focused Advocacy for Tampa Divorce Clients
Our firm approaches divorce with precision and professionalism, helping clients resolve disputes while planning for the future.
Call 813-428-3400 to speak with our team.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.