Vocational Experts

The economic downturn has focused the spotlight on a previously low-profile profession: vocational experts. A vocational expert is a person who assesses the employability of a particular person. In a divorce, there are often disputes about earning capacity. People want to understate their own income or their capacity to earn an income, while overstating the other spouse’s income and that spouse’s potential earnings. Here are some common questions that arise in this area:

1) Can my husband simply decide one day that he doesn’t want to continue his $300,000-a-year job as a bank executive because he would prefer to make pottery? You can’t just decide to make pottery if it would result in your making poverty for your family. A court may, and often will, assess a person’s potential income if it differs from that person’s actual income. Moreover, deflating one’s income specifically to avoid a legal obligation can constitute fraud.

2) If my wife does not want to work, even though she is capable of doing so and has the education to do so, am I still on the hook for child support and spousal support as if she were not working at all? Usually, people’s potential income is ascribed to them rather than their actual income if there is a conscious decision not to work. The factors that determine potential income include age, education level, work experience, how long ago someone was educated, how long ago someone was last employed, health concerns, childcare responsibilities, and the like.

3) If my ex-spouse is cohabiting with, or married to, a partner who has substantial resources so that my ex does not have to work, is my child support and spousal support figured as if my ex makes no money? Most states, including Oregon, have as part of their child support guidelines a rebuttal worksheet on which the parties can list additional factors that influence the amount of child support that is just. Although future spouses and partners do not generally have a legal obligation to support their partner’s children from a previous relationship, if they have chosen to do so and if the biological parent’s share of the support for the children comes from that person, that person’s resources may be relevant to the determination of child support and spousal support.

4) If my ex wants to work only part-time, does that affect the spousal support or child support that I pay? While the court cannot order a person to work a certain number of hours, if the court determines that a spouse is capable of working more than he or she is, or at a higher rate of pay than he or she has chosen to earn, the court can order child support and spousal support as if the person were working at that higher rate of pay and with a greater number of hours.

5) Can the court order my spouse to get a particular job, or to get any job at all? Not exactly. Courts cannot order a person to work, because that amounts to involuntary servitude, which is prohibited by law. However, a court can fashion support awards based on what a person would earn if that person were working full-time at a job that the person is qualified to do. If a lawyer wants to manage a restaurant instead of practicing law, the lawyer is free to do so, because a person can work or not work as that person chooses. However, a court may very well assess the lawyer’s support payments based on what the lawyer could earn in the legal profession rather than at a restaurant.