If your spouse owns a business, you may already have run into the most frustrating problem in Florida family law: the number on the financial affidavit does not match the life you watched them live. The tax return says one thing. The house, the vehicles, and the vacations say something else. And when you ask a court for temporary support or help paying your legal fees, everything turns on which number the judge believes.
This is one of the most common situations we see as a Tampa divorce lawyer, and it was at the center of a Fourth District Court of Appeal decision issued in December 2025. In Cohen v. Alkobi, No. 4D2025-1056 (Fla. 4th DCA Dec. 17, 2025), a husband reported earning $50,000 a year. A general magistrate concluded the real figure was $200,000. A trial judge threw that finding out. The appellate court put it back — and the reasoning turns on a distinction most people going through a divorce have never heard of, but that may quietly determine the outcome of their case.
Here is what happened, what the court decided, and what it means for you.
What Happened in Cohen v. Alkobi
The case arose from a dissolution of marriage where the immediate fight was over temporary relief — the support and fee arrangements that keep both households functioning while a divorce is pending, long before any final judgment.
The trial court referred those temporary issues to a general magistrate, a court officer who holds hearings and makes recommendations that a judge then reviews. Two motions were in front of the magistrate: the former wife’s request to impute income to the former husband, and her renewed request for temporary attorney’s fees and costs.
The former husband reported income of $50,000. The magistrate did not accept that figure. Instead, the magistrate found that a figure of $200,000 annually was appropriate, resting on three things: the business earnings evidence, what the magistrate described as severe commingling of the husband’s business and personal finances, and his failure to provide testimony or evidence of reasonable business expenses.
On that basis, the magistrate recommended $18,300 in temporary attorney’s fees and $15,820 in costs, along with an itemized budget and a payment schedule. Importantly, the magistrate granted the imputation motion without prejudice — meaning the number was a working figure for temporary purposes, not a permanent determination.
The trial court initially ratified all of it. Then the former husband moved to vacate, and the trial court changed course. It found no competent, substantial evidence of commingling because the bank records had never actually been admitted into evidence; that the magistrate had imputed income without finding the husband was underemployed or voluntarily so; that the figure rested on business revenue rather than income, and on an old tax return; and that the fee directions were insufficient.
The former wife appealed. The Fourth District reversed, 2–1.
Two Very Different Ways a Court Decides What You Earn
To understand the ruling, you need one distinction. It sounds technical. It is not — it may be the single most practically important concept in Florida support law.
Section 61.30 of the Florida Statutes governs how courts determine income. It contains two separate mechanisms.
Present income — section 61.30(2)(a). This is a finding about what you actually earn right now. It covers salary, wages, bonuses, commissions, self-employment and business income, rental income, and more. For business income, the statute contemplates gross receipts minus the ordinary and necessary expenses required to produce that income. Crucially, a judge or magistrate is not required to simply accept whatever you write on your financial affidavit. If your testimony is not credible, or your claimed expenses are undocumented, the trier of fact can find your actual income is higher than you claim. That is still a present-income finding — it is a conclusion about reality, based on evidence.
Imputed income — section 61.30(2)(b). This is different in kind. Imputation is for someone who could be earning more but is not — the spouse who quits a good job during the divorce, or takes a deliberate step down. Because imputation attributes income a person is not actually receiving, Florida law puts guardrails around it. The court must first find the person is voluntarily unemployed or underemployed, and that the situation is not the result of physical or mental incapacity or other circumstances genuinely beyond their control. Only then does the court look to recent work history, occupational qualifications, and prevailing earnings in the community to arrive at a number. Skip the voluntariness finding, and the imputation is reversible on appeal.
Here is the practical difference. A spouse who runs a cash-heavy business and reports very little is usually not an imputation case. Nobody is saying they should get a better job. The claim is that they already earn more than they admit. That is a present-income question, decided on credibility and evidence.
Confusing the two is common. It happened in this case — arguably at every level.
The Ruling: Substance Controls, Not the Label
The Fourth District’s central holding is refreshingly practical: what a court calls its finding does not control. What the court actually did controls.
The majority relied on its own prior decision in Newman v. Newman, 221 So. 3d 642 (Fla. 4th DCA 2017), for the proposition that a trier of fact may conclude a party earns more than claimed based on testimony and credibility — and that this is a present-income finding under section 61.30(2)(a) even if the order uses the word “impute.”
Looking at what the magistrate had actually done, the majority saw a present-income analysis: business earnings testimony, credibility findings, historical earnings used for corroboration, and the absence of any proof of legitimate business expenses. That is section 61.30(2)(a) reasoning. So when the trial court relabeled it as imputation and struck it down for lacking the voluntary-underemployment findings required by section 61.30(2)(b), the trial court applied the wrong framework — and in doing so, exceeded its authority.
The majority added a second point that matters enormously for anyone dealing with a self-employed spouse: competent, substantial evidence does not have to be documentary. Citing Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992), the court explained that for self-employed payors, testimony, credibility assessments, and historical context can support an income figure — particularly when proof of expenses is missing.
That last clause deserves emphasis. If you are self-employed and you do not document your business expenses, a court is not obligated to guess in your favor. The absence of proof can work against you rather than for you.
The court reversed and sent the case back for explicit findings under section 61.16(1) — Florida’s attorney’s fee statute — and workable directions consistent with the magistrate’s present-income determination.
What a General Magistrate Is — and Why the Review Rules Decided This Case
Many contested family cases in Hillsborough County and across Tampa Bay are referred to a general magistrate. Understanding how that process works will serve you well.
A general magistrate is not a judge, but conducts hearings much like one and then issues a recommended order. Referral generally requires the parties’ consent, and there is typically a limited window in which to object to the referral, so this is a decision worth discussing with your attorney early rather than letting it pass by default.
Once the magistrate issues a recommendation, a party who disagrees files exceptions, and the trial judge reviews them under Florida Family Law Rule of Procedure 12.490. Here is the part that decided Cohen: on that review, the trial judge is not conducting a do-over.
As the Third District put it in Middleton v. Hager, 179 So. 3d 529 (Fla. 3d DCA 2015), the trial court reviewing a magistrate’s report acts as an appellate tribunal. Its job is narrow — to determine whether the magistrate’s factual findings are supported by competent, substantial evidence and whether the magistrate applied the correct legal standards. The judge may not reweigh the evidence or substitute their own judgment for findings that the record supports.
For a Tampa audience, note which case the Fourth District cited for that standard: Allison v. Allison, 363 So. 3d 1129 (Fla. 2d DCA 2023) — a Second District decision. The Second District is the appellate court for Hillsborough, Pinellas, Pasco, Polk, Manatee, Sarasota, DeSoto, Hardee, and Highlands Counties, which makes Allison binding authority in a Hillsborough County divorce rather than merely persuasive. The rule at the heart of Cohen is already the settled rule here.
There is one more practical consequence worth knowing. Because the trial judge reviews the magistrate’s work for evidentiary support, a party filing exceptions generally has to supply a transcript of the magistrate hearing. Without a record of what was said, there is usually no way to demonstrate that a finding lacked support. Arranging a court reporter for a magistrate hearing is not optional if you might contest the outcome.
The Dissent, and Why This Was Genuinely Close
This was a 2–1 decision, and the dissent by Judge May is worth reading honestly rather than glossing over.
Her position: the former wife filed a motion to impute income. The magistrate said it was imputing income. And the magistrate did so without making the statutory findings that imputation requires. On review, the trial court did exactly what it was supposed to do — it examined the magistrate’s imputation for competent, substantial evidence and found it lacking. The dissent emphasized that the magistrate leaned on business revenue rather than income, and on an older, pre-pandemic tax return; that no bank records were admitted; and that there was no finding of voluntary underemployment. She would have affirmed.
Notice that the majority and the dissent describe the evidentiary record in meaningfully different ways — the majority frames it as 2023 business earnings testimony corroborated by history, the dissent as stale pre-pandemic figures. Reasonable judges reading the same record reached different conclusions about what it showed.
Two honest takeaways from that.
First, precision in drafting matters. Much of this dispute traces to word choice. Had the motion and the recommended order framed the request as a present-income determination under section 61.30(2)(a) rather than an imputation request, this appeal might never have happened. Getting the legal theory right at the outset is not pedantry — it is what prevents years of expensive litigation about labels.
Second, evidence has to be admitted, not merely referenced. The trial court found no support for the commingling conclusion specifically because the bank records were never moved into evidence. Documents sitting in a binder on counsel’s table are not evidence. A Florida divorce attorney’s job at an evidentiary hearing includes the unglamorous work of actually getting exhibits admitted.
Practical Takeaways, Especially If a Business Is Involved
You do not need to track the citations. A handful of concrete lessons come out of this case.
1. A financial affidavit is a starting point, not the last word. No court is required to accept a self-reported income figure at face value. In Cohen, a claimed $50,000 became a working figure of $200,000. If your spouse’s reported income does not square with observable reality, that is a provable question, not a dead end.
2. If you are self-employed, document your business expenses. This is the single most actionable item here. Florida law lets you deduct ordinary and necessary business expenses from gross receipts — but you have to prove them. When expense proof is missing, courts may treat revenue as a fair proxy for income. Clean records protect you. Missing records hurt you.
3. Keep business and personal finances separate. The magistrate’s commingling finding was central to the analysis. Running personal expenses through a business account may create tax and accounting headaches in ordinary life; in a divorce, it invites a court to conclude that the business and the person are financially indistinguishable.
4. Get the legal theory right before you file. Present income and imputed income are different claims with different proof requirements. Filing under the wrong one can hand your opponent an appellate issue even when your underlying position is strong.
5. Bring a court reporter to magistrate hearings. Contesting a magistrate’s recommendation usually requires showing what the evidence did or did not support, and that means a transcript. The cost is modest against the value of preserving your position.
6. Temporary is genuinely temporary. The magistrate’s determination here was expressly without prejudice. Temporary relief orders exist to keep both households stable during the case and can be revisited as the record develops. If a temporary ruling goes against you, it is not the end of your case — and if one goes your way, it is not a guarantee about the final judgment.
7. Ask about temporary fees early if you need them. The whole point of the fee request in Cohen was to let a spouse with less access to income participate meaningfully in her own divorce. Section 61.16 exists precisely so that the ability to be heard does not depend entirely on who controls the money. If you are the lower-earning spouse and cost is a barrier, raise it early rather than after you have fallen behind.
8. Understand the layers of review. Magistrate to judge, judge to appellate court — each layer has a narrow, specific job. Knowing what each one can and cannot do shapes strategy at every stage, and it is a large part of what experienced Tampa family law counsel brings to a case like this.
Talk With a Tampa Divorce Lawyer at The McKinney Law Group
If you are the spouse who has been handed a financial affidavit you know is not accurate, the feeling of being disbelieved on something you can see with your own eyes is exhausting. If you are the business owner whose income genuinely fluctuates and who is being accused of hiding money, that is exhausting in its own way. Both positions are common, and both are provable with the right preparation.
The lesson of Cohen v. Alkobi is that these cases are won on evidence and on framing — on documented expenses, admitted exhibits, correctly stated legal theories, and a clear record. Those are exactly the things that are difficult to manage alone and that make a real difference in outcome.
The McKinney Law Group represents clients throughout Hillsborough County and the greater Tampa Bay area in divorce, temporary support and fee requests, alimony, child support, marital asset division, business valuation issues, and post-judgment matters. Whether you need help establishing what your spouse actually earns, defending an unfair income determination, or navigating a general magistrate proceeding, we can give you a candid assessment and a concrete plan.
If you have questions about how income is calculated in your case, or you want a straightforward conversation with a Tampa divorce lawyer about temporary support and fees, contact The McKinney Law Group today to schedule a confidential consultation. In family law, early preparation is usually the difference between a strong record and a lost argument.
Frequently Asked Questions
What is the difference between imputed income and actual income? Actual, or present, income under section 61.30(2)(a) is what a court finds you genuinely earn — including business income after ordinary and necessary expenses. Imputed income under section 61.30(2)(b) is income attributed to someone who could be earning more but is not, and it requires a specific finding that the person is voluntarily unemployed or underemployed. They are separate legal theories with different proof requirements.
Can a Florida court decide I earn more than my tax return shows? Yes. A court may find your income is higher than reported based on testimony, credibility, and the surrounding financial picture — particularly where business and personal finances are mixed together or claimed expenses are undocumented. Under Ugarte v. Ugarte, that evidence does not have to be documentary to be legally sufficient.
My spouse owns a business and claims almost no income. What can I do? This is a common and addressable problem. Approaches include thorough financial discovery, subpoenas to banks and third parties, examining the lifestyle actually supported by the reported income, and in appropriate cases retaining a forensic accountant. Consistency between what your spouse reports and how they live is often the most persuasive evidence available.
Does the court have to accept the business expenses my spouse deducts? No. Only ordinary and necessary expenses required to produce income are deductible for support purposes. Personal expenses run through a business generally are not. The party claiming the deductions typically bears the burden of proving they are legitimate.
What is a general magistrate, and do I have to agree to one? A general magistrate is a court officer who conducts hearings and issues recommended orders that a judge later reviews. Referral generally requires the parties’ consent, and there is usually a short window to object. Magistrates can move a case forward faster than waiting for judicial availability, but the decision to consent is worth discussing with your attorney rather than making by default.
Can a judge overturn a magistrate’s recommendation? Only within limits. The judge reviews the recommendation the way an appellate court would — checking whether the findings are supported by competent, substantial evidence and whether the magistrate applied the correct legal standards. The judge may not simply reweigh the evidence or substitute a different conclusion. That is precisely what the Fourth District found had gone wrong in Cohen.
Is a temporary support order permanent? No. Temporary relief is designed to stabilize both households while the case proceeds and can be revisited as more evidence develops. In Cohen, the income determination was expressly made without prejudice.
Is a Fourth District decision binding in Tampa? Not directly — Hillsborough County cases are governed by the Second District Court of Appeal, so Fourth District decisions are persuasive here. But the standard of review at the heart of Cohen comes from Allison v. Allison, a Second District case, which is binding in Tampa.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group Family & Divorce Lawyers, 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.