Experts Help Lawyers Decide Whether a Spouse Who Lost a Job During the Pandemic Is Shirking

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Vocational expert

Financial stress is a leading cause of marital breakups. The pandemic turned the lives of many married couples upside down. Spouses who worked for vulnerable businesses during quarantines — restaurants, fitness centers, nightclubs, and other businesses that could not accommodate social distancing — lost their jobs. 

The economic recovery, on the other hand, has produced jobs that employers can’t fill. Some employees who joined the gig economy when they lost their jobs decided not to return to their former employment. As demand for employees rises, wages are increasing. Many employees are looking for the best opportunity before they commit to rejoining the workforce.

While economic uncertainty caused marriages to fail, the economic recovery is prompting spouses to ask whether the other spouse should be earning a higher wage. Incomes earned by both parents plays a key role when the court sets child support obligations. Income also drives a court’s decision to award or deny alimony (also known as maintenance or spousal support).

Disputes arise when spouses cannot agree about the income each spouse should be earning. Vocational experts help family lawyers understand how much income a court might impute to the other spouse when making decisions about support and alimony.

Unrealistic Income Expectations

In many cases, recent earnings are a good indication of current earning capacity. That might not be true when high earnings resulted from years of seniority in a position that no longer exists.

A spouse who lost a high-income job during the pandemic may have difficulty finding comparable employment. For example, an employee in middle management with 20 years of service who earned a $200,000 salary from a company that downsized or failed might not be able to reenter the labor market in a similar position.

A divorcing spouse might argue that the newly unemployed spouse has an earning capacity of $200,000 based on that spouse’s pre-termination salary. If the spouse is driving for Uber while searching for a new job, however, basing alimony on a $200,000 income might not reflect the spouse’s current earning capacity.

Shirking or Unfortunate?

Judges are in a difficult position when a spouse loses a job shortly before the other spouse applies for alimony. Is the newly unemployed spouse shirking his or her responsibility to support the other spouse or is the unemployed spouse the victim of unfortunate circumstances? If the unemployed spouse was forced out of work for reasons that are not the spouse’s fault, the evidence will not generally support a finding of shirking. Courts do not generally impute income to spouses that they cannot realistically earn.

On the other hand, if a diligent job search would lead to comparable employment and the unemployed spouse is content to remain unemployed, the court might base alimony on the spouse’s earning capacity rather than the spouse’s current earnings. A vocational expert can guide the judge’s decision by offering objective evidence of the spouse’s actual earning capacity.

A vocational expert would examine the spouse’s work history, education, age, and the labor market to determine whether the spouse can realistically expect to find another position that pays a comparable salary. If the vocational expert determines that the spouse will not have new employment opportunities that offer salaries remotely similar to recent earnings, the judge is likely to base an alimony award on the spouse’s current earnings — or forego alimony completely if the two spouses now have similar earning capacities.

Alternative Employment

A spouse might decide to pursue alternative employment rather than returning to a job that paid a steady income but had little opportunity for advancement. For example, the district manager of a restaurant chain might have been laid off when restaurants closed. Rather than returning to work when the restaurants reopened, the manager might have decided to open his own restaurant, despite knowing that it often takes successful restaurants a few years to become profitable and that most restaurants fail before they reach that point.

If that decision leads to a divorce, the former manager’s spouse might claim that the former manager is deliberately refusing to earn the income that he could be earning. If the unemployed spouse is drawing on savings to open a business rather than earning an income, the other spouse might argue that alimony or child support should be based on the income the unemployed spouse could have been earning, not on the spouse’s current absence of income.

Whether a spouse is “shirking” is often viewed as a question of reasonableness. Courts commonly hold that a spouse should be afforded “a fair choice” of a means of livelihood as well as the ability to pursue what the spouse honestly feels are the best opportunities, even though the present financial return may be reduced from prior employment. On the other hand, if a spouse is making an unreasonable choice, or is clearly evading a support obligation, the court is likely to base alimony and child support on the income that the spouse could have been earning.

A vocational expert can research the incomes typically earned by people who start up restaurants, the future earning potential of a restaurant owner, and the success rate of restaurant startups. That objective analysis can inform a court’s understanding of the reasonableness of a decision to abandon former employment.

Stay-at-Home Parents

An employee who was laid off during the pandemic might have decided to stay at home and raise the family’s children rather than returning to former employment. That decision is likely to cause the working spouse to make a larger child support payment than he would have made if the nonworking spouse had returned to her former job. 

When a spouse decides not to work, the working spouse might claim that the stay-at-home spouse is shirking her obligation to earn a reasonable income. Courts will often compare the amount of earnings a parent has foregone to the amount of childcare payments that the parent saves by staying at home. If the amounts are roughly the same, or if the parent’s income would not be sufficient to pay for childcare, a court might agree that it is more reasonable to stay at home than to work.

A vocational expert can assess the parent’s work history, education, and available employment in the labor market to determine the parent’s earning capacity. That calculation is essential the court’s decision whether the parent is shirking by staying at home to raise children rather than earning an income.