Alimony and the 13th Amendment.

Reiss and Walsh's Mathematics for Computing Imputed Income (July/August), while a thorough and cogent analysis of the improper imputation of income and its effect on alimony awards, erroneously reinforces the myth that imputation of income is lawful. Chapter 61 alimony provisions which permit the courts to impute income violates the U.S. Constitution's 13th Amendment ban on involuntary servitude.

United States v. Kozminski, 487 U.S. 931, 942 (1988), a case in which the U.S. Supreme Court was faced with the problem of defining involuntary servitude in a criminal civil rights violation case demonstrates the applicability of the 13th Amendment to alimony statutes and explicitly to the concept of imputed income to affect alimony.

Servitude is a condition "in which a person lacks liberty especially to determine one's course of action or way of life." Id. at 968. The Court held that involuntary servitude "necessarily means a condition...in which the victim is forced to work for [another] by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process." Id. at 952. Also, "we find that in every case in which this [c]ourt has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction." Id. at 943. This is precisely what 61.08 alimony provision and imputed income do.

When the lifetime yoke of permanent alimony is placed around the neck of a Floridian who merely seeks to alter his or her right of association and marital status, the family bar guffaws when the victim exhorts, "This is slavery and against the 13th Amendment." Like so many other myths about alimony law, the error is that, in fact, the statute does impermissibly infringe the 13th Amendment.

The 13th Amendment is judicially recognized as much broader that the naive perception of men of color in chains in the 19th century. Perhaps, it is time that the Florida legal system awakens to the antediluvian charter of F.S. [sections]61.08 and begins to shine the constitutional light on the alimony statute.

STEPHEN MARTYAK, Jupiter

Editor's Note: In David Powell's article, "The New Florida Trust Code, Part 2" in the October Journal, the editor's note erroneously cites July 7, 2007 as the effective date of the new trust code. Reader's should note that the new code takes effect July 1, 2007. The Journal regrets the error.