California spousal support orders that don’t involve self employed spouses should be simple but they rarely are. Whether it’s temporary or the final spousal support order, allegations that a husband or wife refuses to work and has a higher earning capacity than what is alleged often intersects with divorce matters, both prejudgment and post judgment.
Our divorce attorneys deal with this issue frequently in family law cases and it is from that perspective that we write this article for you. It is also important to note these imputation of income cases occur in middle class divorce as well as high asset divorce cases. They are also often seen in cases where one spouse wants to modify and reduce a California spousal support order. That is why it is important that everyone who is considering divorce or going through one and who has a spouse who refuses to work to read this article.
When a court makes spousal support orders, it is concerned with each spouse’s actual income, right? Not necessarily. If a spouse refuses to work or is underemployed, the court also has the discretion to look at something called “earning capacity”. Earning capacity isn’t just the amount of income a spouse earns (assuming they work at all) but also what he or she should be earning. While the court has broad discretion when ruling on issues such as spousal support and earning capacity, there are factors the court must take into consideration if the court intends to venture outside of actual income.
Ability and Opportunity to Earn in California Spousal Support Cases.
Earning capacity is measured by the ability to earn income consistent with the spouse’s health, age, education, employment history and marketable skills as well employment opportunities. If a spouse can show that the other spouse has the ability to earn more and the opportunity to do so, the family court can exercise its discretion to impute income. Without it, the Court would be engaging in speculation and imputation of income would be an abuse of discretion.
While the ability to work is often the focus of the spouse’s frustration, the “opportunity” to work sometimes becomes the forgotten factor. The law requires the evidence to show a substantial likelihood that the spouse could, with reasonable effort, produce income. How is that done? Typically, through the retention of a vocational evaluator. California Family Code 4331(a) states:
In a proceeding for dissolution of marriage or for legal separation of the parties, the court may order a party to submit to an examination by a vocational training counselor. 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.
Retaining a vocational evaluation is a necessary part of the great majority of imputation and earning capacity cases. More and more, Family law court judges refuse to impute income without the testimony of a vocational evaluator.
I have been asked if it is necessary to show “fault” or a willful refusal by a spouse to work. We don’t believe so. “Fault” isn’t necessary although if a spouse can show that the other spouse is willful or deliberate in his or her refusal to work or quitting a job, the family court can also monetarily sanction that spouse with attorney’s fees.
For related articles, check out our analysis of the Marriage of Andrea and Jeffrey Barth family law appellate decision.