"Do It Yourself" Employability Evidence Can Backfire With Judges
One of the most uncertain aspects of the divorce process is decision-making about spousal maintenance and child support.
As the courts focus on providing for the children and the financially dependent spouse, they look to impute income and proper evidence to support it.
In many cases, divorcing spouses use their own perspective and "evidence" when presenting the level of employability and earning capacity.
Often, this "DIY employability assessment" strategy has backfired on divorcing parties who choose to take an "I can present my own income case" approach.
Why? There are three primary reasons such an approach can backfire:
1. DIY assessments aren't clear about what evidence judges are truly looking for and influenced by.
2. DIY assessments may disregard the best advice of their legal advisors.
3. DIY assessments lack the experience and proper resources to present the strongest evidence and ultimately receive less desirable imputed income judgments.
In one recent case, a wife claimed her husband (a jeweler) earned certain other degrees that would allow him to achieve higher income levels. While the lower court permitted this assertion, the imputed income was later reversed due to lack of evidence.
The wife did not provide sufficient evidence to support such a claim. A vocational expert would have had the professional acumen to advise the wife and her legal team that this would not ultimately satisfy evidence requirements.
In another case, the wife used a printout from the website salary.com to demonstrate and posit the husband's earning capacity (based on husband's education and degrees).
Although the printout was moved into evidence during the trial (without objection) the court determined that this was insufficient evidence to support a person's proper evaluation and assessment of employability.
A vocational expert would have argued against the inclusion of the data drawn from website salary.com, knowing that it would not likely meet the standards of evidence required by the court.
Employment professionals are trained to draw from a variety of professional tools and forensic resources. They are keenly aware about what is most likely to be credible, in the eyes of the court.
In a final example, a wife who was a highly-qualified landscape architect "did it herself" and argued that she could only perform at the lowest percentile of licensed landscape architects.
Former husband did employ a vocational expert who presented evidence to the contrary, showing the court that the former wife chose not to use her degrees, license, and experience to fully realize her earning potential.
The judge agreed and imputed her income at a higher level than stated by former wife.
The courts are looking for fair and equitable solutions to determine spousal maintenance and child support. The record demonstrates why evidence of employability determined by vocational professionals has greater credibility in the courts and often prevents "backfire results."
