Vocational Examinations in Family Law Cases

In order to impute income to a non working spouse, a under employed spouse, or a spouse claiming to be unable to work or just refusing to work it is necessary for the partying demanding the offending spouse to work to show three things. It must be shown that: 1) the under employed or non working spouse is able to work; 2) what type of employment the offending spouse is able to obtain; and 3) what is the expected income potential for any work that the offending spouse could be expected to earn. All three of these prongs of this test must be satisfied.

In order to fulfill all three prongs a vocational evaluation is required. The information gathered in a vocational examination is used to determine reasonable and realistic expectations of an spouse's current and future employability and what their earning capacity is. The court will review the report and will take testimony of the evaluator in making a determination and finding to fix income for a under employed or non employed parent or spouse. This is called imputation of income and is used for a determination of the amount and duration of spousal and child support.

A party's earning capacity has been defined by the California Supreme Court as "the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history and the availability of employment opportunities." Marriage of Simpson, (1992) C.4th 225, 14 Cal. Rptr. 2d 411. This is ANY and ALL income from any source. This includes gifts, free rent, expenses paid by another person on behalf of a party. Free use of a family residence, etc.

Prior to a vocational evaluation being conducted one of two things must occur. The parties must either agree to the vocational evaluation and there is as stipulation and order that it shall occur and the parties will cooperate with the evaluator, or there has to be a notice motion and a court order that the vocational evaluation is to take place. The party who is the one demanding or requesting the vocational evaluation is going to be the party to pay for it unless the parties agree that the vocational evaluator will be a joint neutral expert.

Pursuant to Family Code (FC) ß4331, a vocational examination report and expert testimony should analyze, summarize and document findings and include information on location, cost and duration of education and training, availability of geographically convenient, current and future job openings, salary data and approximate job search time. The vocational expert's conclusions and opinions are going to be based on:

• an in-depth interview with the person being examined,
• there will be an assessment exercises to determine career values, marketable skills and occupational options,
• there will also be vocational testing to determine abilities.

The vocational evaluator will also conduct labor market research based on the data collected about the party being examined.

The use of the vocational evaluation provide the court the evidence it needs to impute income. It is the legislature's intent to encourage the parties to become self-supporting and less dependent on continuing financial ties to a failed relationship. This is the holding also of the case of Marriage of Gavron, (1988) 203 Cal. App. 3d 705, 250 Cal. Rptr. 148, (the Gavron Warning). The use of the vocational examination is used to make a supported spouse aware of the obligation to become self supporting and to demonstrate reasonable diligence in making efforts to contribute to their own support.

The most common reasons a party will want to use a vocational examination:

• Evaluate the current and future earning capacity and employability of a supported/supporting spouse.
• Estimate a realistic length of time for a supported or supporting spouse to find work in the current labor market.
• Assess efforts of a supported/supporting spouse to seek employment, build a business or explore career options.
• Demonstrate a spouse's lack of education, work-related skills and earning capacity.
• Determine the costs and duration of education and training for future career options.
• Ascertain to what degree factors such as age, physical or emotional health limit employability.
• Identify potential costs related to child care resulting from a spouse's returning to work.
• Compare actual earnings to potential earning capacity of a supported/supporting spouse.
• Establish a supporting spouse's lack of earning capacity and inability to meet support demands.
• Consider changes in circumstances of either spouse's wage earning capacity and employability.

In order to have a a vocational evaluation as stated above, the parties may stipulate to this resulting in a order of the court, or if there is no agreement it must be made by a noticed motion. The motion must be served by mail on the opposing party or if they are represented on their attorney of record. The motion should be supported by points and authorities, a declaration as to why the vocational evaluation is required, and it must state the time, place, manner, conditions and scope of the examination, as well as the name and address of the vocational counselor.

The he court, if it determines that a vocational evaluation is necessary and that the expert opinion will assist the court in making its findings, may, on its own motion, make its own order for a vocational evaluation. Such a order is made under Evidence Code ß730. This order may be made by the court to appoint a vocational training counselor at any stage of the proceedings. Any report prepared by a vocational evaluator will be introduced as evidence under Evidence Code ß1509.