Vocational Evaluations in California Spousal Support Cases
One of the most common questions I get asked as a family law lawyer is “can my spouse force me to work?” Often the spouse who is receiving financial support is threatened by their high-earning counterpart with statements like “you could be earning more money,” “you could be earning at least minimum wage” or “I am going to ask the court to make you get a job”.
The pandemic, and all that came along with it, brought with it a spike in divorces.
One specific cause has been the rise in unemployment. Family law lawyers are now, more than ever, dealing with divorces where one spouse has either lost their job or refuses to return to their previous job. Some people have given up the search for work and others have simply decided that they don’t want to work at all.
So, what happens in a situation where, post-separation, one spouse refuses to seek employment or claims they are incapable of working? Is the working spouse on the hook to provide for them financially? And if so, for how long? Can the Court order someone to seek employment? And what happens if they simply refuse to do so?
The answers to these questions are complicated. While the courts can’t force a spouse to work, they can indeed turn up the pressure in various ways. One way they can do this is to “impute” income to the nonworking spouse. This means that spousal support would be calculated as if the spouse were working and earning income to their ability. So even if the spouse is not working, or they are refusing to work, the support they receive would be reduced by the amount they “could be earning” had they chosen to work. What many people do not realize is that the Court can use its discretion to deny someone spousal support altogether where the supported spouse has unreasonably delayed or refused to seek employment consistent with their existing “marketable skills” and ability.[1]
One of the most common factors we routinely address in spousal support cases is the issue of a spouse claiming they have impaired earning capacity from devoting time to “domestic duties” during the marriage. It is important to understand that the California Family Law Code recognizes that a spouse may have limited earning capacity because they were unemployed for a lengthy period of time during the marriage.[2] Maybe they did not work outside the home because they were the primary caretaker of minor children, or maybe they were caring for an ailing parent or for the other spouse. It is reasonable to conclude that the longer they stayed out of the job market, the longer it might take them to acquire the marketable skills they need to seek employment.
This brings us to the next series of questions…How does the Court determine a nonworking spouse’s “earning ability”? How would the Court come to decide that this spouse is even “capable” of becoming employed, or that they have the “existing marketable skills” and ability to obtain employment?
Well, one of the easiest ways is for the Court to order and rely upon a Vocational Examination.
In a dissolution or legal separation proceedings raising spousal support issues, the court may order either party to submit to an examination by a “vocational training counselor.”[3] The fundamental purpose of this examination is to obtain an expert’s assessment of a spouse’s ability to obtain employment based on their age, health, education, marketable skills, employment history, and the current availability of employment opportunities. Now while a vocational examination order can only be made on noticed motion “for good cause” shown[4], the California Family Law Code does not define “good cause” for this purpose. It is presumed that any showing that the spouse seeking support can work but is unemployed or underemployed will suffice.[5] In my practice, I have often found that unless there are “obvious” reasons why a spouse cannot work, such as their age or their health, there are many advantages to stipulating a vocational examination. This is because without obtaining an actual expert’s opinion as to someone’s employability, we lawyers are left to “guess” as to the amount and duration of a spouse’s earning ability. And let’s face it, our “guesses” could be way off base and that could lead to unnecessary modification requests of support in the future.
So, what goes into these “vocational examinations”? Well, often they will include various aptitude tests that will focus on the supported spouse’s inclination, talent, or natural tendency to learn certain skills. The vocational expert might suggest careers or fields, for which the spouse is best suited based on their skills. The Vocational Exam will also include testing results balanced against the person’s personal background, education, and career objectives. Just as important though is the fact that most (good) vocational examinations will also include specific job market information for that spouse. This could be, for instance, the number of openings in a particular field. In fact, the Family Code specifically requires the vocational training examination to include an assessment of “the current availability of employment opportunities.”[6] In some cases, the Vocational Expert can provide that the spouse “could” find gainful employment but only after seeking job training in a particular field. In those cases, family law courts have the express statutory authority in child or family support proceedings to order a parent to attend job training, job placement, vocational rehabilitation, and work programs. The spouse ordered to attend job training will have to provide the court with documentation to facilitate a determination of whether good faith attempts at job training and placement have been made.[7]
Once the Examination is completed a Vocational Examination Report is prepared by the Expert. The Parties and their counsel can decide to incorporate the Examination’s findings into their support orders, whether it is by the imputation of income or otherwise, or they can ask that the Judge consider the Vocational Examination Report when deciding as to a spouse’s “earning capacity”. It is not uncommon for each Party to hire its own Vocational Evaluator to opine on its behalf.
In conclusion, divorce brings with it many complications, and being pressured to work can elicit a change in one’s sense of identity. Struggling to find work due to a lack of, or outdated skills, can also bring shame and frustration. Likewise, refusing to find work can cause conflict between the Parties. Courts can assist in this regard by ordering and considering Vocational Examinations to ascertain a person’s true earning capacity and marketable skills when making a spousal support order.
Spousal support is an area of family law that is difficult to understand and navigate. As an experienced divorce attorney with a Master of Laws in Dispute Resolution, I understand the intricacies of how support payments are often determined, and I have worked with countless vocational evaluators throughout this process. As a certified mediator in family law, I can assist you in coming to a resolution to fair support payments yourself, rather than leaving that decision up to the court.
[1] Marriage of Dennis (1973) 35 CA3d 279, 283-284, 110 CR 619, 621
[5] Marriage of Stup & Schilders (1987) 11 CA 5th at 913, 217 CR3d at 828
