There are many divorce cases that may go relatively smoothly if the separating spouses are able to remain calm, with a mature understanding of what needs to be done. However, there are also many cases in which one or both spouses do not comport themselves in a way that fosters the appropriate resolution of differences. In fact, many times spouses will take their ongoing problems during the marriage and simply carry them over into the divorce proceeding for the court to see.
One area in which spouses will try to do the most mischief is with, as you would expect, money. The question of spousal support, alimony, can be a particularly contentious area, and when one spouse earns more income than the other, there is an obvious motivation on the part of the lower-earning spouse to maximize his or her alimony support.
The Problem: A Court’s Misunderstanding of a Spouse’s Earning Capacity
Divorce is a tricky area for courts. Why? Because you are taking an intimate relationship that has perhaps existed for decades – full of memories, both good and bad – and you are trying to boil it down into a relatively short legal pleading.
You also have divorcing spouses, often not familiar with the legal system, who have the instinct to pour all of their specific, deeply held resentments about the other spouse into a case that is looking to filter out details and not deal with more.
That is a recipe for a possibly skewed account of the marriage, or the court is left with certain events or problems having an outsized emphasis to other marriage issues. Not surprisingly, the question of earning capacity could be a part of what gets confused in the mix.
Given all the filtering of facts that needs to occur, it is frequent that a spouse will make an application to the court asserting that he or she requires significant alimony. There are cases, however, where a spouse will remain unemployed or underemployed in order to maximize alimony payments. In addition, many times the stay-at-home parent, who may have a master’s degree, will seek to remain “stay-at-home” even though the children have gone off to college.
While alimony has the laudable purpose of making sure that a divorce does not leave one spouse destitute and unable to support himself or herself, it can be manipulated towards less-than-noble goals.
The Solution: A Vocational Evaluation for Divorce
The key to solving the problem of a court being unable to appreciate whether a spouse truly has no earning capacity, or simply gaming the system, is a vocational expert.
A vocational expert is trained to figure out a person’s ability to earn an income through a rigorous evaluation of the person’s education, job skills, and work history, as well as an evaluation of the job market in a given region. A vocational evaluation, then, is the process by which the vocational expert will go through the process of determining a person’s earning capacity. It is a very effective way of sussing out whether the higher-earning spouse is intentionally reducing his or her income – by quitting a high-paying job, for example – to keep alimony obligations low; or whether the lower-earning spouse has a much greater earning potential then he or she has pursued in the past.
Added Benefit: Court’s Typically Rely on Vocational Evaluations in Divorce Cases
A family court judge is not required to follow the opinion of a vocational expert in a divorce case. But, a vocational evaluation is highly persuasive because it is more objective look of a spouse’s situation. Plus, if a spouse disagrees with the vocational expert’s opinion, then he or she can produce evidence to refute the findings, which typically leads to better information with which the judge can make a decision.
In short, if you are the higher-earning spouse, you would do well to hire a vocational expert. The added expense of getting the expert will ultimately save you a great deal of money through lower alimony payments.
