Is Your Spouse Underemployed (Not Unemployed, but Underemployed)?

He’s making a living, working 9 to 5, but now his wife believes he could be making more. He’s a smart man, with a Master’s degree, and 18 years of experience in his field. However, he earns under $75,000 a year, and with the possibility of a spousal support order in the distant future, his wife believes her soon-to-be ex-husband could earn more; in fact, he has earned more in the past. Thus, how can the wife prove to the court that her husband has the ability to earn more money, and thus increase the possibility of a higher spousal support order?

Making the Determination

Determining the amount of support owed from one spouse to another is often not a cut-and-dried calculation. Though the payor of support may be employed, a question can be raised about whether or not he or she is underemployed. This can call the earning capacity of the employed spouse into question.

While a strong family law attorney often uses a forensic accountant as an integral member of a solid “divorce team” for a client, an expert vocational evaluator frequently can be added to help defend or substantiate an argument that the working spouse is underemployed.  The vocational evaluator will offer an analysis of a working spouse’s earning potential, consisting of both the ability to work, and the opportunity to work, which means determining whether there is an employer in the marketplace who is willing to hire the working spouse. However, sometimes the question becomes whether this spouse can in fact earn more than he or she is earning.

Providing the Evidence

A vocational evaluator will conduct an interview to examine a spouse’s current and future earning capacity, ability to work and actual opportunities in the marketplace to work.  Using tests, questions and analysis of both the academic and employment history of the spouse, a vocational evaluator can provide an examination report which the family law court can use in its determination of spousal support. This report includes an assessment of the spouse’s ability to obtain employment based upon such factors as age, health, education, marketable skills, employment history and the current availability of employment opportunities.

The vocational evaluator’s report and testimony, once submitted into evidence, help lay a foundation for estimating a spouse’s earning capacity, a significant factor in determining the amount of spousal support to be paid. A vocational evaluator, as part of the divorce team, helps cut to the chase by weeding through the various questionable or false arguments about maximum earning potential made by the spouse who is not earning enough. This helps the family law attorney provide crucial evidence to the court regarding that spouse’s earning capacity, so that the determination of appropriate support can be made to finalize the divorce.