I your spouse isn't working to capacity, you can ask the court to attribute to him or her an earning capacity for support purposes. But, how do you do that?
A vocational evaluation can be conducted to show the court that a party has the ability to work and that jobs are available. The evaluation is a means of having an expert conduct a study to provide the court with information about the ability of one or both of the spouses to earn more than they claim.
In our present economy, there may be few jobs available, but that doesn't mean that a spouse can remain unemployed for a long period of time and still continue to collect full amounts of child and spousal support, or avoid paying, as though he or she were incapable of working. The evaluation process is essential to get expert opinion to the judge who must make a determination - you can't just tell the judge how much they can make, or even what they used to earn in earlier days - only an expert can provide such evidence.
Once a judge has information that the party has job skills, he or she may order that the person make job contacts, and report them on a form listing the name of the company, the manner of the contact, to whom the person spoke, the job for which they applied, and the outcome of the contact. We often see those who we think are not anxious to find work making the required five or ten job contacts a week simply by logging onto the Internet and forwarding a resume - some judges require personal contact.
Most vocational evaluators will testify that jobs are usually found through personal contact (including family and friends), and that the success rate in sending a resume without such contact is very low. At least one appellate court has observed that it is easy for a person to avoid working if he or she wants, so the judge is ultimately required to make a gut reaction to a set of facts to determine whether the litigant is affirmatively seeking employment.
In one of my cases years ago, the non-working spouse would report on the court form, that she was going to an industrial park, usually on Monday or Tuesday, then going door to door passing out resumes and picking up a business card from the receptionist. Every two weeks, she would then report back 20 job contacts, but it was painfully obvious that she was only looking for work one day a week.
We suspected that she was actually working somewhere the rest of the time, probably under the table. The judge looked at her qualifications (fluency in four languages), the master's degree she had from college, and assigned to her a relatively high-income level, and ordered child support accordingly and ended the husband's spousal support obligation. A good vocational evaluation is essential to that process.
In the present job market, it is relatively easy to claim that someone is not earning a living in his or her chosen field, for example a real estate broker. A judge has to decide whether or not to push that person to look for work in some other industry, or try to weather bad times because the person was previously successful and will probably be successful again when the market picks up. In the long-run, the decision to pursue one career move or the other may affect the persons long-term ability to pay increased child or spousal support.
These kinds of decisions are left to the sound discretion of the trial judge. Whichever side of the issue you are on, your position is best presented to the judge by a certified family law specialist; and vocational evaluations are essential.
If you can present evidence of a pattern in the manner of job contacts, or even show that you have followed up to determine that the contacts were actually made, you are more likely to be successful in that process. If you treat it casually, or assume that the judge will simply believe in your position, you are likely to be disappointed in the outcome.
