Vocational Experts and Spousal Support

Posted on Dec 2, 2020 by Katie Carter


I’ve written about spousal support SO MUCH, and that’s mostly because it’s one of those areas of law that is not at all set in stone.

There are things we don’t litigate all that much – like retirement, the marital home, and child support, for example – but there are other things, like spousal support and child custody, that we litigate all the time.

Why? Because there’s no “one size fits all”, hard and fast, black and white rules that govern spousal support and child custody. That can make compromise difficult, especially given that spousal support has a lot to do with how a former husband and wife will be able to support themselves after the divorce is finalized.

We have general guidelines to help us determine when spousal support is awarded, and then, if so, how much and for how long.

Basically, it boils down to an analysis of need versus ability to pay (which means that the payor spouse needs to earn considerably more than the payee, and that the payee should not have enough to pay her bills), the statutory factors, and the duration of the marriage.

Recent changes to the law have also made spousal support more difficult than it used to be. Now, it’s no longer taxable to the person receiving it or tax deductible to the person paying it – which, on the surface, sounds good, if you’re the payee, but which actually makes reaching an agreement more difficult. Think about it: you take a spouse who already earns considerably more, and you take away the ONLY benefit he might have received for paying it. What do you get? A person who is financially able to fight the award of spousal support (because, hey, what’s in it for him?) against a person who is probably unable to mount a challenge.

It’s hard to get attorney’s fees in a divorce – at least, it’s hard (or perhaps its more accurate to say borderline impossible) to get a judge to force him to pay the entirety of your attorney’s fees. Sometimes, attorney’s fees are awarded, in a narrow, limited context, when a party doesn’t follow the legal rules (like, responding to discovery in the required time period), but they’re very rarely (or perhaps never) awarded to provide any kind of “equitable” access to the courts. There’s no such thing. You get the legal representation you can pay for, and that’s it.

In temporary spousal support cases, the court can now apply the Fairfax guideline calculation, but that doesn’t apply to permanent awards of spousal support. And, even so, there are a number of ways that a husband – or payor spouse – can mount a defense to a wife’s request for spousal support.

What is a vocational expert? Will one be involved in my case?

A vocational expert is one of the ways that a husband can allege that, even assuming there’s a need and an ability to pay, a reasonable justification for spousal support under the statutory factors, and a sufficiently long marriage to warrant an award of spousal support, his wife should be responsible for earning a certain level of income.

The court can’t force you to get a job, but a vocational expert can assess your abilities – your education, your training, your experience – and make a recommendation to the court about what you could earn if you did re-join the workforce, or start working at something closer to what the vocational expert believes to be your fullest potential.

It goes both ways, of course. Just like he can’t quit his job and start flipping burgers to either avoid paying spousal support or to pay dramatically less in spousal support, you can’t refuse to get a job and expect to have him make up the difference in support. Or, you CAN refuse to get a job, but the court can impute (meaning, make you responsible for earning, regardless of whether you actually earn) income to you.

I haven’t worked in years! Can I really be expected to go back to work?

We can refute it, of course. Any “expert” witness will be questioned and cross examined. There’s always room to argue that what the expert asserts is or is not accurate. Other factors – like how long you’ve been out of the workforce, what you’re physically able to do, whether you’re suffering from any pre-existing conditions that make certain types of work more or less realistic for you – will also be considered. It’s possible, too, that your side would use your own vocational expert to argue that you’re not suited to any type of work.
The court can’t force you to work, but imputation may reduce or eliminate the amount of spousal support you would be eligible to receive, so it may be that you have no other choice.

But I’m disabled! I’m mentally ill! I’m unable to work!

Again, we can refute it! It’s not like because the vocational expert asserts something, that we have to unconditionally accept it! In fact, that’s exactly what a lawyer does not do! We mount a defense, we put together the specific facts in your favor, and we argue that you can’t work, or that the vocational expert has overblown your actual income potential.

Ultimately, when a case goes to court, it’s up to a judge to make a decision. It’s one of the risky things about going to court. I can’t predict what the judge will say – well, I certainly can’t here, today, in an article, when I know nothing about your case – but I can tell you that a good attorney won’t just take this lying down, and will be prepared to argue for what you can (or can’t) realistically manage.
Just like we may involve a vocational expert of our own, we may also bring in doctors, therapists, or others who can testify about your abilities and what may be realistic for you, in your circumstances.

Your specific situation is certainly relevant, and not just whether you’re older, have been out of the workforce for a long time, or are suffering under a disability or mental illness. If you’re staying at home to take care of a special needs child, for example – that’s relevant. Whatever your specific circumstances are, it’s worth discussing in court.

Spousal support cases can be tricky, so you’ll want to have an experienced attorney on your side to help you navigate these challenges.
For more information, or to schedule a consultation with an attorney to discuss your spousal support case, give our office a call at 757-425-5200.