In order to request that a court order one spouse to pay another support after a divorce, a judge will need to consider several factors. The court will want to know if both spouses are working, and if not, what is the reason. Does the spouse have a disability? Is there simply no job market for that specific spouse? These factors the court considers are a spouses “ability to earn” and opportunity to earn.”
Ability to Earn
One’s “ability to earn” is measured by their health, age, education, employment history and marketable skills. Once the court has this information before it, it may use its discretion to impute income to a spouse who either refuses to work or is prevented from working for a specific reason. In addition, the court will take into account a spouse’s “opportunity to earn,” for which the California Family Code requires evidence to show a substantial likelihood that the spouse could, with reasonable effort, produce income. In other words, even if the spouse is 100% qualified for a certain job, if there are little to no jobs open in that field, that leaves the spouse with very little opportunity to earn.
One way to produce evidence of a spouse’s ability and opportunity to earn is by making a motion to appoint a vocational evaluator. The evaluator can testify in court as to what a particular spouse’s income would be if he or she decided to seek and obtain reasonable employment. The judge will then use that imputed income and order that spouse to pay a certain sum each month in order to support the other spouse at the same or similar marital standard of living the parties enjoyed while married.
Note that this also applies even if a spouse is already working, but not earning income at their full potential. For example, an experienced neurosurgeon making six figures each year could not take a job at McDonald’s for minimum wage just to spite her ex-husband and attempt to avoid a higher spousal support award.
If you believe your spouse is not earning at their full potential, or if your spouse is seeking a higher spousal support amount than you can realistically afford, give Cage & Miles, LLP a call today and speak to an experienced attorney about your options.