In divorce cases, judges have a difficult job because the amount of alimony a person should pay isn’t necessarily fact-specific. While there are legal guidelines to assist a judge in arriving at the appropriate amount of support payments, it is really an art more than a technical science because every situation is unique.
A judge must review a panoply of factors to make the alimony decision including the financial needs of each spouse, their income, their standard of living, their level of education and experience, and their ability to earn income, higher or lower, in the future.
When it comes to the ability to earn income, that is where there is the most gray area because it requires some speculation on the part of the judge. It is not difficult to look at a person’s income and their expenses in the present, yet it is a much different question to make an educated guess about what a person’s income could be.
That is where vocational experts come into play. When a vocation expert does a vocational assessment for a divorce matter, the expert can assist the judge in quantifying the speculative question of a spouse’s ability to earn income now and into the future.
Accordingly, in this article, we will review the considerations that are relevant to the earning capacity question, and then discuss a real-world case – the recently decided New Jersey case of Amzler v. Amzler (463 N.J. Super. 187, 2020).
If, after reviewing this article, you have additional questions about a vocational expert for a workers’ compensation claim, we invite you to contact us at Occupational Assessment Services, Inc. – OAS.
We are one of the most experienced employability and life care planning firms in the United States. To discuss your case, call us at 1-800-292-1919, contact us at a location near you, or through our online form.
Factors Involved in Earning Ability in Divorce Cases
A judge benefits immensely from the expert assistance of a vocational expert in divorce cases. That is why a judge will often appoint a vocational expert on his or her own motion so that the expert is available to inform the final decision on the alimony amount. That said, if a divorce judge does not choose to obtain the services of a vocational expert, the litigants – the divorcing spouses – should consider getting a vocation expert anyway.
That is because a vocational expert will conduct a vocational assessment in the divorce matter that includes an evaluation of the following information, the spouse’s:
5. Job skills and competencies
6. Employment history
7. Medical history
All that information from the assessment then creates for the expert a complete picture of the spouse, and suggests the earning capacity of that spouse into the future.
Importantly, a vocational expert will also include in the vocational assessment in the divorce, a review of the job market in the relevant region. That means that vocational experts have particularized knowledge about the job market for any career based on geographic location.
When it comes to the judge’s final decision, the judge has the discretion to follow the vocational expert’s recommendations or not. Yet, having a vocational expert as part of a contested divorce proceeding can be very persuasive to a judge.
Real-World Case: Amzler v. Amzler
In this particular case, the couple divorced after several years of marriage. In the divorce, the parties agreed to a so-called “anti-Lepis” provision. “Lepis” refers to the name of the case in which that type of provision became well known. The provision essentially requires that either spouses “voluntary reduction in income” would not be grounds for a change in the amount of alimony to be paid. Because one spouse made approximately $110,000 annually, and the other made $35,000, the alimony obligation on the higher-earning spouse was $415 per week.
About a decade later, the higher-earning spouse suffered some medical issues and retired at age 59, before reaching full retirement age. At that point, the lower-earning spouse made a motion to ensure that the higher-earning spouse continued to pay his alimony obligation, to which the higher-earning spouse made a cross-motion to be relieved of his alimony obligation altogether.
The case ultimately turned, in part, on the vocational assessment and testimony of a vocational expert, hired by the higher-earning spouse. The expert, after conducting an assessment (in which the expert researched all of the spouse’s medical evidence and job market analysis) found that the spouse’s physical difficulties for a man of “advanced age,” prevented him from doing the job he had been doing for decades. However, the expert added that the spouse could work a different job, and was not entirely prevented from working because of medical problems.
The lower court judge did not give any credibility to the “anti-Lepis” provision or the expert’s recommendation and ordered the spouse’s alimony obligation terminated. However, on appeal, the appellate court looked to the vocational expert’s testimony as persuasive that the higher-earning spouse was not completely precluded from earning an income. Therefore, the appeals court reversed the lower court’s decision and ordered additional hearings.
In sum, the testimony of the vocational expert was vital in that case being reversed on appeal. For your divorce, you should consider hiring a vocational expert as well.
OAS – Expert Vocational Assessments in Divorce Cases
The experts at Occupational Assessment Services, Inc. (OAS) have over forty years of experience documenting the income potential and employment capacity of those with wrongful termination cases, as well as with the underemployed, unemployed, and disabled spouses in many types of cases
OAS specializes in working with the plaintiff or defense attorney to assist in objectively documenting the economics in a case. From the initial referral to the trial testimony, OAS works with the retaining attorney so that the vocational assessment of the case can be objectively and efficiently presented.
We strongly believe in the importance of a clear and understandable presentation of the facts. OAS is the leading provider of Vocational Expert and Life Care Planning Services for Plaintiff and Defense attorneys.
The company specializes in assisting attorneys in evaluating earning capacity in divorce cases and documenting the damages in cases where an individual has been severely injured by providing objective findings on how the injuries affect a persons’ ability to work and earn money, as well as the cost of care required in catastrophic injuries.
OAS is your Vocational Expert & Life Care Planner Nationwide, with offices in New York, New Jersey, Connecticut, Pennsylvania, Georgia, Florida, Texas, Nevada, and California.
Occupational Assessment Services, Inc. is one of the most experienced employability and life care planning firms in the United States. To discuss your case, call us at 1-800-292-1919, contact us at a location near you, or through our online form.