Imputing Income to a Spouse for Alimony Purposes
Family Code 4331 concerns vocational examinations, which are used to impute income for alimony. It grants the court the authority to order a spouse to undergo a vocational examination during divorce or legal separation proceedings. This examination assesses the spouse's ability to obtain employment based on age, health, education, marketable skills, and employment opportunities.
Imputing Income for Alimony through a Vocational Examination
Here is the text of Family Code 4331
"(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 their 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, or other postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.
(2) Qualification to administer and interpret inventories for assessing career potential.
(3) Demonstrated ability in interviewing clients and assessing marketable skills with an 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.
Good Cause Requirement for Vocational Examinations
Under Family Code 4331, a spouse seeking to have the other spouse undergo a vocational examination must file a formal motion, known as a request for order, showing good cause. Often, spouses agree to a vocational examination without requiring a formal motion. Once signed by the court, such agreements become a stipulation and order.
A vocational examiner will typically prepare a report provided to both spouses or their attorneys. This report plays a crucial role in imputing income for alimony, providing evidence of the spouse's capacity to earn income.
Costs Associated with Vocational Examinations
Vocational examinations incur costs; typically, the spouse requesting the examination is responsible for paying for them. However, attorneys may agree that these costs are subject to reallocation, meaning the court could order the other spouse to pay some or all of the expenses, although this is rare.
Additionally, the court has the authority to order the spouse who requested the vocational examination to cover the costs of counseling, retraining, or education the supported spouse may require. This situation underscores the importance of carefully considering the implications of requesting a vocational examination.
Focus on Opportunity, Capacity, and Ability to Earn Income
Vocational examinations are critical because they assess whether the supported spouse has the opportunity, capacity, and ability to earn income. This evaluation allows the court to impute income for alimony if it finds that the spouse can work. However, the imputation of income is not a decision that family law judges make lightly; it requires substantial evidence to support such a determination.
Imputing Income for Alimony in Your Case
The income the court imputes varies with each case and depends on the specific facts presented. Most experienced family law attorneys agree that if a spouse has the capacity, ability, and opportunity to earn income, the court should at least impute minimum wage unless there is a compelling reason not to do so.
However, even the imputation of minimum wage requires evidence to support the court's decision. The complexities of imputing income for alimony highlight the need for thorough preparation and expert legal guidance.
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