Determining the Earning Capacity of the Unemployed Spouse in Family Law Cases

Vocational Experts  are rehabilitation professionals who are knowledgeable in the local labor market. Many have a Master’s degree and most have served as an expert for the U.S. Government, Social Security Administration. In order to determine the earnings of an unemployed spouse or “house husband,” increasingly, these experts are being used by Matrimonial attorneys to evaluate a  spouse’s earning capacity . An  employability expert’s  testimony can be used to lower alimony and/or child support payments.

The Vocational Expert concentrates the evaluation on determining the type of work and skills the spouse has at the time of the evaluation. This process consists of gathering information, either through obtaining information from the retaining spouse or by conducting an in-person evaluation. Sometimes, it is necessary for the retaining spouse’s attorney to file a motion to compel their spouse to appear for an evaluation.

It is essential to the assessment to determine the age, education, past work experience, previously learned skills, and medical limitations, if any, of the unemployed spouse.

The expert will take a detailed work history and classify the spouse’s previous jobs using the U.S. Department of Labor’s Dictionary of Occupational Titles. This process includes an assessment of the jobs’ aptitudes and skills which are used to perform a transferability of the skills evaluation.

A battery of  vocational tests  to assess the spouse’s achievement levels, skills, and aptitudes may be administered.

The Vocational Expert will perform a transferability of skills evaluation to determine what type of occupation the unemployed spouse can perform. Based on this data, the Vocational Expert will determine what jobs, if any, an unemployed spouse can perform, as well as what these jobs pay in the local labor market.

In addition, OAS Employability Experts will document the availability of jobs in the local geographical area the spouse can perform. The salaries for the open jobs are compared to the average earnings for the same jobs in the spouse’s geographical area as reported by federal and state government wage surveys. The testimony of this information by a Vocational Expert is important in assigning the future earning capacity of a spouse and will affect the Judge’s determination of alimony and/or child support payments.

Recent cases of under and unemployed spouses have included a Hedge Fund Manager who became a cook, a chef who never worked in this occupation before, a house husband who had worked in the furniture business, and a wife who had been a learning disability/reading specialist but had not been employed for 15 years.

In each of these circumstances, the OAS Vocational Expert was able to locate open jobs and their respective salaries which were then compared to the average earnings of the jobs according to the U.S. Department Bureau of Labor Statistics. The Judge used this information to impute earnings onto the under or unemployed spouse based on the OAS Vocational Expert’s testimony.

OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, CT, GA, and CA. To see how OAS Vocational Experts can assist you in evaluating a spouse in a divorce case, consult  oasinc.org  or call  800-292-1919  for our professional qualifications, fee schedule, and a sample report, as well as the OAS, published article “Using a Vocational Expert in Evaluating Spouses in  Divorce Cases .”