Vocational Experts Help Florida Spouses Who Contest Alimony Awards

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contest alimony awards

A recent court decision in Florida illustrates how vocational experts help family law attorneys whose clients seek or contest the payment of alimony.

Facts of the Case

Heather and Michael were married for more than 15 years. At the time of their marriage, Heather had a full-time job as an administrative assistant. Four years after they married, Heather quit her job and stayed at home to raise their children. Five years later, Heather attempted to return to the workforce.

Heather had difficulty holding a job. She did not maintain full-time employment. She held some part-time jobs but her employment history was unsteady. 

The divorce case came to trial about nine years after Heather’s attempt to return to work. Heather was 42 years old and unemployed at that time. She contended that physical and mental impairments prevented her from keeping a job. The court apparently agreed that Heather suffered from emotional issues that were attributable to her marriage and divorce.

Heather asked the court to award permanent alimony. Michael maintained that Heather was capable of working and asked the court to impute the income to Heather that she could have been earning.

Imputed Income

In family law cases, courts base alimony determinations on several factors, including the respective incomes and needs of the divorcing spouses. Courts usually look at the income a spouse is actually earning, but they are generally empowered to impute income that a spouse could be earning if the spouse is choosing to earn less than the spouse is capable of earning.

Florida follows the general rule that courts may impute income if a spouse is voluntarily unemployed or underemployed. Florida law instructs the court to consider “employment potential and probable earnings” after examining the parent’s “recent work history, occupational qualifications, and prevailing earnings level in the community.”

The judge must decide whether a spouse who uses his or her “best efforts” would be capable of earning more than the party’s current income. A spouse is deemed to be voluntarily unemployed or underemployed if the spouse has not been diligent in finding appropriate employment. When a mental illness or a disability impairs the ability to work, the spouse is not making a voluntary choice to forego available earnings.

Parties often present the testimony of vocational experts in support of the position that a judge should or should not impute income to a spouse.

Vocational Expert’s Opinion

A vocational expert examined Heather’s work history, education, and qualifications. She determined that most people under similar circumstances would be able to find a job within six months that paid annual wages of $22,000 to $35,000.

The vocational expert recognized that Heather was suffering from emotional issues. The expert concluded that Heather could not “present herself in a way that is suitable for employment.” The expert noted that Heather’s depression sabotaged her ability to find and hold a job because she would not reliably report for work. In the expert’s view, employers would not perceive Heather as a desirable employee.

The vocational expert determined that Heather did not need further training or education to become employable. Rather, she needed to overcome her sense of victimization and entitlement and the self-destructive behavior patterns (including not showing up for work) that resulted in her repeated loss of employment. 

The vocational expert concluded that Heather needed therapy and life coaching to help her work through her depression and transition to full-time employment. She concluded that Heather needed to learn how to take responsibility for her life and to stop blaming others for her problems. The vocational expert disagreed with Heather’s assessment that she was incapable of working full time. With a serious commitment to therapy and life coaching, Heather could rejoin the workforce, just as millions of other people have done who have emotional issues.

Court Ruling in Reliance on Vocational Expert’s Opinion

The judge found that the vocational expert’s assessment was “credible and consistent with the other credible evidence presented.” The court imputed income to Heather based on full-time employment earning $13/hour ($27,040 annually). 

The court denied Heather’s request for permanent alimony. The court awarded temporary (durational) alimony for a period of 69 months. The court also awarded “bridge-the-gap” alimony of $500 per month for one year so that Heather could obtain therapy and life coaching. While Heather was ultimately given some time to become employable before income was imputed to her, the vocational expert’s testimony saved Michael from paying alimony for the rest of Heather’s life.

How Vocational Experts Impute Income

Vocational experts perform a vocational assessment in order to determine whether an unemployed party could find a job, or whether an underemployed party could find a better job. That assessment begins by gathering relevant facts about the party, including his or her:

1. work history,
2. educational background,
3. job training,
4. life experiences,
5. health,
6. age,
7. length of absence from the work force,
8. vocational goals,
9. motivation to work,
10. family situation (including childcare responsibilities), and
11. other relevant data.

The expert then performs a vocational evaluation. The evaluation makes use of standardized testing instruments and techniques to assess work skills and aptitude, abilities that are transferrable as work skills, interests, personality, and work values.

That process of data collection allows the expert to determine a range of jobs that the party would be able to perform. The expert also takes into account any physical limitations that a physician assessed during a functional capacity evaluation and mental health limitations that have been assessed by mental health professionals.

After determining the kind of work that a party can perform, a vocational expert uses Bureau of Labor Statistics data and other reliable sources of information to survey the labor market. The expert determines whether jobs are available within the relevant geographic area that the party can perform and the average earnings for an employee with the party’s skills and experience.

If requested by the attorney, the vocational expert then prepares a report outlining the expert’s opinions and the data that was used to arrive at those opinions. The report also explains the reasoning and methodology that the expert employed to make clear that the expert’s opinions are reliable and admissible.