Vocational Evaluations in Divorce and Family Law Cases...

February 18, 2009

This week, I was in a position to respond to a request for a vocational evaluation in one of my cases.  The motion wasn't timely made, but to avoid the inevitable and direct the choice of evaluator away from my opponent's favorite, I stipulated to the request.  It may be a foolish expense in that case.  My client is actively seeking employment in a down market - she has a lot of experience in a family business, but no credentials that translate directly into a job - no degree and no license.  Her job reference is her husband [who may not be a reliable reporter], and who would hire someone for a very responsible position on the strength of a reference from the divorcing spouse?  Her skills are in a niche market.  On paper, she may not qualify for anything above a mid-level job, and those positions are not plentiful in San Diego at the moment - lots of people with skills at that level are facing unemployment.

But, the husband is anxious to get out from under a long term spousal support obligation, is desperate to find a way, and willing to spend the money.   We are pretty confident the evaluator won't do anything but suggest she do exactly what she is doing - unless the evaluator recommends she spend the time to get a degree and professional license over the next few years, rather than work.  Long range, that may be the better strategy, but we can count on the spouse to disagree.

In California, the court can order a party to undergo a vocational evaluation to obtain an opinion of the person's earning capacity, or suggest a plan of education leading to full time employment.  Family Code Section 4331.  It requires a motion, good cause, and an adequate opportunity to the other party to object.
That section provides in part
The examination shall include an assessment of the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination shall be on an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living.
From the lawyer's standpoint, the evaluation is to provide the judge with a basis to impute income to an unemployed or underemployed party.
I find they are most useful as a long range planning tool.  Even if the non-working party has no useful skills, the evaluation can provide a road map for training and experience, so in future years the paying spouse can point back to the plan and argue that the spouse did not due what he or she could have done to become self-supporting.  In California, it is the stated policy of the law that each person shall do his or her best to become self-supporting within a reasonable period of time.
The report has the tendency to shift the burden to the non-working party to prove what has been done to find the best possible job, or get the necessary education.  It comes from a neutral person, and judges tend to rely heavily upon them.  It can provide a devastating result for the person who cannot demonstrate that the failure to earn a living is not of their doing.
Sometimes, the result comes back and says the person can barely do better than minimum wage, but that is a rarity.  Sometimes, they provide the non-working spouses with suggestions they had not considered, and a potential career path.
In the current economy, they may not find any significant number of jobs available, but the requesting party is laying the foundation for future motions to reduce or terminate the support obligation.  From that person's standpoint, the motion is essential.  From the other's, the report can be a nagging problem.