In many California divorce cases, one spouse has a huge financial advantage over the other, especially when the marriage lasted longer than 10 years and one spouse was unemployed for the duration. In this type of situation, a request for spousal support will normally be granted by the court during the divorce process.
There are situations in a divorce that deal with a spouse's ability to earn a certain amount of income. Sometimes, it might be necessary to request your spouse go through vocational examination that will assess their opportunity to earn income.
If a spouse receiving support is not working or has the capacity to earn more, you can request a vocational examination. However, you will have to obtain permission from the family court to proceed with this type of discovery.
Under California Family Code 4331, the court can order a vocational examination to help determine spousal support issues.
A vocational training counselor will be chosen by the family law court to conduct an examination on relevant factors on spouse's ability to retain employment. The primary factors include:
- age and health of spouse;
- employment history and experience;
- income history;
- education level;
- special skills and training of spouse;
- current employment opportunities.
The counselor has to meet specific requirements in order to qualify for examining spousal support determinations.
The vocational expert is attempting to decide any available employment and earning opportunities for the spouse. They will write up a report with an assessment how much they could potentially earn if they sought a job.
The opinion of the expert can be very useful for the family law court when they are deciding crucial issues in a divorce, such as child support and alimony.
Spouse Has the Opportunity and Ability to Earn Income
The ability and opportunity for a spouse to earn income (earning capacity) is typically determined by their age, health, education, and history of employment.
If one spouse is able to prove their ex-spouse can earn more, the court has the discretion to get involved.
Under law, there must be solid evidence a spouse has the potential to earn income. This is normally decided by a vocational expert. California Family Code 4331 describes a vocational examination:
- “In a dissolution of marriage, the court can order a spouse to submit to an examination by a vocational counselor. The examination will assess the spouse's ability to obtain employment and current job opportunities. The focus of the examination is to assess their ability to obtain employment that will allow them to maintain their marital standard of living.”
As stated, the counselor will make their assessment of the spouse's ability to get a job primarily based on their age, health, education, employment history, and marketable skills.
The use of a vocational evaluation is a typically necessary for most imputation and earning capacity cases. Many California family court judges depend on their testimony to make support orders.
Child support and spousal support orders
In a California divorce, child and spousal support orders are directly connected to the income of each spouse.
For instance, spousal support is normally ordered when one spouse earns much less than the other. This is common in a situation where the mother stayed home to raise children and manage the household, while the father was the primary wage earner.
The spouse who was the higher wage earner will normally be ordered to make spousal support payments in order to give the other spouse a chance to find employment.
Likewise, child support orders will be based on the income of both parent's and the court will make a support order that is relevant to the paying parent's income level.
Impact of Vocational Examination on a Divorce
It's not uncommon to find a situation where one spouse is unemployed voluntarily, which often impacts a family court's support orders. There are also situations where a spouse is purposely underemployed.
California family courts know some spouses will intentionally reduce or eliminate their income because they see it as an advantage in support obligations.
When this occurs, a vocational examination can help the court determine a spouse's earning capacity in order for them to impute income. For example:
- spouse paying child support makes $50,000 annually;
- vocational expert determines they could earn $100,000 annually;
- court can determine spouse is underemployed voluntarily and impute up to $100,000 for the spouse in order to decide child support payments.
Spousal support (alimony)
Similarly, this same scenario can apply to spousal support orders if the paying spouse becomes unemployed.
On the flip side, there are situations where a spouse who is asking for alimony might be asked to go through a vocational examination.
Many times, a stay-at-home spouse has not had a job for several years which can clearly impact their ability to find employment.
In this scenario, the spouse will normally have a valid need for spousal support while they get the training and skills to give them a chance to support themselves.
If a spouse was only unemployed for a short time, then it could change the situation because they could have immediate employment opportunities.
The vocational expert can make an assessment and report to the judge whether a spouse who is asking for support needs time to find employment in a reasonable amount of time.
Vocational expert assessment and conclusion
Clearly, a California family court can't force your spouse to get a job, but if the vocational examiner concludes your spouse has a capacity to earn, the judge could “impute” that income.
This means the court is allowed to assign this fictional amount of income to your spouse when they are determining child support or spousal support.
If your spouse refuses to voluntarily take a vocational examination, then your family law attorney can file a motion with the court that would require them to take one, which are typically granted by the judge.
Negotiations Between Family Law Attorneys
Once the results of the vocational examination have been received, it doesn't always have to be shown to the family court judge. In other words, the results could be an opportunity for your lawyer to negotiate with your spouse's lawyer.
In most cases, an attorney will realize a judge will make decisions that are similar to the vocational report, so they will use it to negotiate support orders with the opposing lawyer.
Vocational examinations are not free, but normally will save a spouse money compared to the costs of litigation in a family law court.
California vocational examinations often help spouses resolve their child and spousal support issues without the need to get the court involved.
Furman & Zavatsky are experienced Los Angeles divorce and family law attorneys representing people in all Southern California courts, including Orange County, Ventura County, Santa Barbara County, Hollywood, Anaheim, Riverside, and San Bernardino.
We are located at 17207 Ventura Blvd. Suite #2 Encino, CA 91316. Contact our firm for a free case evaluation at (818) 528-3471.