How does earning capacity affect my claim for support?
Earning capacity is used to evaluate support claims such as child support and alimony. Because the amount of support you will receive or will be ordered to pay is based upon these numbers, it is important to have accurate accounting of your respective incomes and earning capacities when calculating support. For example, if in anticipation of divorce your spouse has quit a high-paying job only later to assert an inability to pay support due to a lack of income, your spouse’s new, lower income would not be an accurate reflection of his/her earning capacity for purposes of calculating support. To use the new, lower income in determining support would reward the supporting spouse who has acted in bad faith and penalize the dependent spouse.
Can I have the court impute income to my spouse?
Possibly. There are instances where the court can and does impute income to an individual. In determining whether the imputation of income is appropriate, the court will seek to determine the reasoning for the individual’s lowered income or lack of employment. For example, if an individual is voluntarily unemployed or underemployed, a court can impute income to that individual when calculating support obligations in a case. However, there are some instances where the court cannot and/or will not impute income to an individual. For example, if a party is unemployed but is at home and providing care for a minor child under a specified age (for example, age 3), the court will not impute income to this individual caring for the minor child.
When to Look for a Job
I have not worked outside the home in twenty years. Am I expected to immediately seek employment after my separation or divorce?
Although the circumstances of each case are unique, in general you are not expected to seek employment immediately following a separation or divorce. Nor are you required to take the first, low-paying job you find. Depending on the laws of the state in which you live, your spouse may have a support obligation to you, the amount and duration of which will vary on a case-by-case basis. It is expected that you should be reasonable when evaluating your employment opportunities, as most courts will expect spouses to enter the workforce at some point. In addition, alimony will not last forever; therefore, you will need to formulate a plan for your long-term financial future. Remember that incurring additional debt to maintain the same standard of living during the marriage is not ideal. It is better to cut expenses in the short term than to incur additional debt for which you will be solely responsible in the future. Practice patience and take the opportunity to find employment that not only holds your interest but also will reward you with independence and financial security. If you are represented by counsel, listen to your counsel’s advice on when to seek employment, as income is relevant to any claims for child support and/or spousal support.
Going Back to School
How will going back to school help me after my divorce?
As a stay-at-home parent or someone with a limited work history, registering for classes and earning a degree in your identified area of interest have the potential to elevate your earning capacity and allow you to become financial independent. Going back to school is not a “cure all” solution to this employment situation, but you can use it as an opportunity to better position yourself to provide for you and your children going forward.
When in the divorce process should I go back to school?
Unfortunately, there is no “one size fits all” answer to this question. When you should pursue higher education will depend entirely on the facts of your case. Although there may not be a “perfect” time to hit the books, there may be a time that works better for you and your family. Once you have made the decision to go back to school, determine what type of educational program will work for you. Many schools now offer night, weekend, or online classes, which cater to the working, nontraditional student. In addition, look for scholarships and grants that might be available to you in order to limit your debt associated with this new endeavor.
What is a “vocational evaluation”?
A vocational evaluation is an evaluation performed by a vocational expert that provides an unbiased assessment of an individual’s true earning potential. The vocational expert, through a series of in-person interviews, tests, and market research, is able to assess an individual’s ability to earn an income. Often in cases of divorce, one or both spouses have alleged that the other party is intentionally depressing his/her income or has the potential to earn an income far in excess of what he/she currently earns. When performed, a vocational evaluation can determine whether these allegations have merit.
How can a vocational evaluation help my case?
Whether a vocational evaluation is needed in your case will depend on the facts of your case. Although expert reports are not binding, they can be very persuasive to the judge, who will be the ultimate trier of fact in your case. Where it is alleged that a party has depressed their income to avoid a support obligation or a party has the ability to earn a more significant income, despite a limited work history, a vocational evaluation can be used to provide the judge with an unbiased assessment of the true earning power of the individual in question instead of conjecture. In addition, if you have had an illness or injury and can no longer work as you previously could, a vocational evaluation might be helpful in explaining to the Judge why your earning potential is now less than it has been in the past. When support is at issue, you want the court to have an accurate analysis of your income and earning potential when making important decisions regarding support in your case. Reports such as these have the potential to affect the amount of support a judge orders to be paid.
Can or Should I Retire?
I had planned to retire at age 65, but instead I am now divorcing. Can or should I still retire as I had previously planned?
Whether or not you will be able to or even should retire as previously planned will depend entirely on the facts and circumstances of your particular case. The number of individuals divorcing at age 50 or later has increased drastically in recent years and spawned the term “gray divorces.” Individuals like you who are separating later in life face different issues than your younger counterparts. Younger individuals going through a divorce have not yet reached their maximum earning potential and therefore are better able to weather a loss of retirement. However, individuals such as you, who are close to or of retirement age, have already maximized your earning potential and are therefore unable to easily make up for a 50 percent reduction in retirement. If you have a premarital or postmarital agreement, you may be able to mitigate the extent to which your retirement is divided with your spouse. However, if you have not previously addressed how your retirement is to be divided in the event of a divorce, you may need to reevaluate your retirement goals to accommodate a divorce in your overall retirement plans. Take proactive measures, such as meeting with your financial advisor, to manage and restructure your remaining retirement after divorce. Depending on the facts of your case, you may consider delaying your retirement to age 70 in order to maximize your Social Security benefits. Also, you will want to avoid the appearance of intentionally depressing your income for the purpose of paying support.