What Constitutes a Reasonable Job Search in Family Law Cases?

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Employability Experts are being increasingly used by Matrimonial attorneys to evaluate an under-employed spouse’s earning capacity. A Vocational Expert’s testimony can be used to lower alimony payments to spouses. One of the questions answered by the Vocational Expert is: “has the spouse made a reasonable effort or conducted a reasonable job search, to obtain employment?”

The Vocational Expert’s evaluation consists of conducting an in-person evaluation of a spouse to determine their age, education, past work experience, previously learned skills, and medical limitations if any. In addition, the expert may administer a battery of vocational tests to assess the spouse’s achievement levels, skills, and aptitudes. The Vocational Expert will perform a transferability of skills evaluation to determine what type(s) of occupation(s) the spouse can perform. Based on this data, the Vocational Expert will determine what jobs, if any, a spouse can perform and what these jobs pay in the local labor market.

One of the roles of a Vocational Expert is to quantify a person’s employability and earning capacity. The standard procedure used consists of evaluating jobs and earnings a person can expect given their age, education, work experience, training, marketable transferable skills, aptitudes, vocational capacity, and access to the labor market. The vocational evaluation considers whether or not an evaluee can engage in commensurate employment and makes a determination as to whether the job seeker has engaged in a “good faith” effort to secure employment. A person stating an inability to be employed must search for work with reasonable and diligent job searches.

A Vocational Expert compares the spouse’s actions to those that are normally performed by similar job seekers to become employed. These efforts include:

1. The nature and degree of efforts which are performed in an average or typical job search.
2. The effect of the job search based on the age of the job seeker.
3. The job-seeking resources are available to the job seeker.
4. The number of interviews one might expect to see generated based on certain search efforts.
5. What makes successful networking.
6. How the job seeker’s efforts compared to typical or successful efforts.

The Bureau of Labor Statistics (1996, page 226) notes a Job Seeker is defined as “All unemployed persons who made specific efforts to find a job sometime during the four-week period preceding the survey week…Job seekers are grouped by the methods used to seek work. Only active methods – which have the potential to result in a job offer without further action on the part of the job seeker – qualify as a job search. Examples include going to an employer directly or to a public or private employment agency, seeking assistance from a friend or relative, placing or answering ads, or using some other active methods…The passive methods which do not qualify as job search include reading (as opposed to answering or placing) ‘help wanted’ ads and taking a job training course.”

OAS Employability Experts will document whether a spouse has conducted a reasonable job search, as well as determine the availability of jobs the spouse can perform and the wages for these jobs. 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.

A case reported in the New York Post involved an individual employed in the entertainment industry for a number of years who resigned from his $2 million jobs in Broadcast Television at the time of his divorce to take a $300,000 job in Cable Television. The Vocational Expert was able to locate open jobs with salaries equal to his past earnings, which was the amount the judge imputed as his income. According to newspaper accounts, he has failed to abide by the judge’s rulings and will be spending the next 20 weekends in jail.

OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, CT, GA, and CA. To see how the OAS Vocational Experts can assist you in evaluating a spouse in a divorce case, consult oasinc.org or call 800-292-1919 for 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.”