IMPUTING INCOME TO A SPOUSE
When and how does a court impute income to a spouse before it orders alimony?
Imputing Income through a vocational examination
Family Code 4331 states:
“(a) 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.
(b) The order may be made only on motion, for good cause, and on notice to the party to be examined and to all parties. The order shall specify the time, place, manner, conditions, scope of the examination, and the person or persons by whom it is to be made.
(c) A party who does not comply with an order under this section is subject to the same consequences provided for failure to comply with an examination ordered pursuant to Chapter 15 (commencing with Section 2032.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(d) “Vocational training counselor” for the purpose of this section means an individual with sufficient knowledge, skill, experience, training, or education in interviewing, administering, and interpreting tests for analysis of marketable skills, formulating career goals, planning courses of training and study, and assessing the job market, to qualify as an expert in vocational training under Section 720 of the Evidence Code.
(e) A vocational training counselor shall have at least the following qualifications:
(1) A master’s degree in the behavioral sciences.
(2) Be qualified to administer and interpret inventories for assessing career potential.
(3) Demonstrated ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints.
(4) Knowledge of current employment conditions, job market, and wages in the indicated geographic area.
(5) Knowledge of education and training programs in the area with costs and time plans for these programs.
(f) The court may order the supporting spouse to pay, in addition to spousal support, the necessary expenses and costs of the counseling, retraining, or education.”
Family Code 4331 gives the court the power to order a spouse to submit to an examination by a vocational examiner. Vocational examinations are limited to divorce or legal separation actions.
Family Code 4331 refers to a motion and the term good cause
That means the spouse who wants his or her spouse to submit to a vocational examination must file a formal request with the court. This motion in Family Court is called a request for order.
Most of the time, a formal motion is not necessary because the spouses, through their lawyers, will agree to a vocational examination. This agreement is called a stipulation and, once signed by the court, becomes a stipulation and order. A vocational examiner will generally prepare a report and provide that report to the spouses or each spouse's attorney.
Vocational examinations do cost money
Typically, the spouse who requests the vocational examination pays for it. Sometimes, the attorneys agree this cost is subject to reallocation which means the court has the power to order the other spouse to pay some or all of it. Practically speaking, that rarely happens.
The court even has the power to order the spouse who requested the vocational examination to pay for the costs and expenses of counseling, retraining or education the supported spouse needs. This falls into the category of, "be careful what you wish for."
Focus on opportunity, capacity and ability to earn income
Vocational examinations are important because the focus is to determine whether the supportive spouse has the opportunity, capacity and ability to pay for his or her own support. This gives the court the power to impute income to the supported spouse if it makes such a finding. Imputation of income is not a matter family law judges should take lightly. It is not enough to say a spouse can work and therefore the court should impute income to him or her.
Imputation of income is a complex area of California alimony law
How much income the court imputes depends on the facts and is different in each case.
Most experienced family law attorneys agree that unless there is a compelling reason that prevents the spouse from working, minimum wage should at least be imputed if that spouse has the capacity, ability and opportunity to earn that income.
However, imputation of any income, including minimum wage, is not a conclusion the court reaches without evidence in support of it.
Ready for additional reading on California alimony? Check out the links below.