Earning Capacity Law and Vocational Experts in Support Cases

Understand the importance of utilizing a vocational expert to accurately determine earning capacity in family law cases.

Spousal and child support based upon the incomes of the parties - in some cases, the court can use actual income. But many parties are, to a greater or lesser extent, underemployed or unemployed. In these cases, support must be based upon earning capacity--upon imputed income.
The earning capacity of a person with a particular set of employment qualifications is a question of fact. Courts are increasingly recognizing that judges are not well-suited to determine a person's earning capacity, and that this question is better addressed by vocational experts--persons with expert knowledge of positions and salaries available in different fields. Both parties are entitled to present testimony from vocational experts, of course, and the courts must therefore learn how to weigh the qualifications and testimony of vocational experts. The vocational expert in a spousal and child support case increasingly plays a role similar to that of the valuation expert in a property division case; the expert helps the court determine the value of what the parties are fighting about.
Just as attorneys have learned how to work with and use valuation experts, so must they learn how to work with and use vocational experts. All vocational expert testimony is not the same; some types of testimony are preferred over others. The lawyer who knows how to use vocational evidence well has an advantage over the lawyer who uses it casually, and a definite advantage over the lawyer who does not use vocational evidence at all.
This topic will help the practicing attorney learn how to use vocational evidence well, in ways which courts are more likely to find persuasive.

Faculty

Brett Turner

National Legal Research Group, Inc.

Laura Morgan

Family Law Consulting