The Impact of a Vocational Expert in a Family Law Case

Family law courts make financial decisions for spouses who cannot come to an agreement when marriages dissolve. Those decisions typically involve the division of property and the payment of child support. In some cases, a court will also one spouse to make lump sum or periodic payments to support the other spouse. State law might refer to those payments as alimony, maintenance, or spousal support.

Vocational experts help lawyers present evidence about a spouse’s earning ability. Evidence about the recipient’s earning ability helps the court decide whether a spouse might require temporary alimony while updating the skills required to return to the job market. Evidence about the paying spouse’s earning ability helps the court decide how much alimony that spouse has the ability to pay.

Earning Ability and Alimony

To determine alimony, a court will ask how much money each spouse earns and how much money each party needs. It is often difficult to maintain a lifestyle after a divorce that compares to a lifestyle enjoyed by a two-income family. However, when one spouse has made sacrifices during a long marriage (such as giving up a career) to maintain a home or raise children so that the other spouse can work, it is reasonable for the spouse with a higher income to help the spouse who has a smaller or no income.

When a spouse is young enough to return to the workforce, temporary alimony might provide support while the spouse is attending school or obtaining training to bring former work skills up to date. A nurse who stopped working to raise children, for example, may need to attend courses before obtaining a current certification. An office worker may need to learn how to use modern word processing and bookkeeping programs.

How much income the spouse will be capable of earing after job training and how long that training might take are questions that a vocational expert can answer. Each party might rely on an expert opinion about the spouse’s maximum earning potential and the time it will take to reach that potential. The judge might award short-term alimony for the time it will take the spouse to acquire work skills. The judge might award longer-term alimony if there will always be a large gap between the earning ability of the paying spouse and the recipient spouse.

Earning Ability and Shirking

Courts don’t usually interfere with a spouse’s career choice. A spouse who did community service work for a nonprofit at a relatively low wage during a marriage will not usually be expected to find a job with a more lucrative wage simply because the spouse must now pay child support.

On the other hand, courts are suspicious of spouses who quit a job, move to a lesser paying job, or reduce their income as soon as they realize a divorce is imminent. If the spouse is deliberately lowering his or her income to avoid an alimony or support obligation, the court might decide that the spouse is shirking. That finding must usually be based on evidence that the spouse is making a voluntary choice to earn less than he or she is capable of earning in order to avoid a support obligation.

A spouse might also be guilty of shirking when the spouse reports less income than he or she is actually earning. Spouses who are self-employed and those who work a second job for cash are sometimes suspected of keeping their income “off the books” to avoid paying full alimony or support. Employees who work on commission might also defer their commission earnings until after they receive a W-2.

When a court decides that a spouse is shirking, the court can impute income to that spouse. Imputed income is usually the amount that the spouse could earn by exercising due diligence.

State Law and Imputed Income

Courts rarely impute income to a spouse unless the spouse is guilty of shirking. Some state laws limit the court’s authority to impute income. In Florida, for example, the court cannot usually impute a greater income than the spouse ever earned prior to the divorce.

Florida law requires a court to consider a spouse’s “recent work history, occupational qualifications, and prevailing earnings level in the community” before imputing income to that spouse. Florida does not allow judges to impute income that could only be earned after acquiring additional education or job training. The imputation of income must be based on current job qualifications, not potential job qualifications. Florida’s appellate courts have thus overturned decisions that impute income based on a spouse’s failure to maximize current income when the spouse would need to obtain a certification that the spouse is not currently qualified to receive.

Using a Vocational Expert to Determine Earning Ability

Vocational experts cannot determine whether a party is shirking. Expert witnesses are not mind readers. They cannot comment upon a party’s motivation for quitting a job, voluntarily reducing income, or failing to search for new employment. Shirking is usually proved by circumstantial fact evidence rather than expert evidence.

Vocational experts are nevertheless important in family law cases when imputing income becomes an issue. For example, a vocational expert can examine the factors that Florida law requires a judge to consider, including recent work history, occupational qualifications, and wages paid within a community. Occupational qualifications are gleaned not just from past employment, but by determining whether work experience, military experience, education, job training, and other life experiences have given the spouse skills that can be transferred to other kinds of employment.

By examining all those factors, a vocational expert can determine the jobs a spouse is qualified to perform. By examining databases or performing labor market studies, a vocational expert can examine the availability of those jobs within a community and determine the wages those jobs pay. Comparing current wages (if any) to wages the spouse is qualified to earn will help the judge determine the wages that should be imputed to the spouse if the judge decides that imputing income is justified by the facts.