Determining Spousal Earnings in Family Law Cases Using a Labor Market Survey

January 16th, 2018
Determining Spousal Earnings in Family Law Cases Using a Labor Market Survey

Divorce attorneys are increasingly using Employability Experts to determine the unemployed spouse’s earning capacity.  A Vocational Expert’s testimony can be used to lower or eliminate spousal alimony payments.

Employability Experts have extensive experience in placing individuals in jobs given their age, education, past work experience, previously learned skills, and medical limitations, if any. In addition, they are experts not only in determining a spouse’s earning capacity, but also the availability of jobs in the local labor market.

Matrimonial attorneys will retain such an expert to determine what jobs, if any, a spouse can perform and what the jobs pay in the local labor market.  The salaries for the proposed jobs are compared to the average earnings reported by state and federal government wage surveys.  The federal government’s survey is considered the “gold” standard as the U.S. Department of Labor contacts every employer to obtain wage information.

As part of their evaluation, some Employability Experts will conduct a Labor Market Survey.  The survey consists of conducting an internet search and/or contacting employers to document the availability of jobs the spouse can perform and the wages being paid for these jobs.   These wages are compared to the government surveys.

A recent New Jersey case illustrates the circumstances where a Vocational Expert is required.

James Smith, the male spouse, had a Master’s Degree from a New York University and worked after graduation in business earning upwards of $100,000 per year.  After being laid off from his last job, he decided to become a dog walker earning $15,000 per year.

Mr. Smith was referred to a Vocational Expert where a standard diagnostic interview was conducted detailing his education, past work experience, and training.  At the time of the evaluation, he noted having received his Real Estate license but had not sold any homes.  In fact, he did not have a website which is the initial step in attracting potential clients.  In addition, he had become discouraged with his lack of progress and was now considering going back to school to become a teacher.  The Vocational Expert conducted a Labor Market Survey, contacting employers in the local area regarding job openings Mr. Smith could perform and determining the wages for these open jobs.  Based on the Labor Market Survey, the expert testified that there were jobs which were paying equal to his past earnings and this was the amount the judge imputed as his income.

OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, GA, CT, NV, and CA.  To see how the OAS Vocational Experts can assist you in evaluating an underemployed, unemployed, or disabled spouse in a divorce case, consult www.oasinc.org or Call 800-292-1919 for professional qualifications, fee schedule, and a sample report.