If the threat of paying alimony to your ex-wife has you worried, the prospect of having to prove what she can earn to eliminate, or at least minimize, that threat is probably worse. For many guys, while a divorce is pending is the time that there are “no jobs” to be found, anywhere, and your income seem to be at its highest - in other words, the perfect set of circumstances for her, and not you.
Add to those circumstances deadlines from the court, pretrial conferences, discovery requests from your wife’s attorney, appraisals, house searching, testing schedules for parenting time, and the overall unpleasantness of divorce, and it is small surprise that the burden of having to prove what she can earn is a heavy one. There are certain things us lawyers do to make it easier, things you may do, too –
History – Make a timeline of your wife’s work history, which you may use for both settlement discussions and trial. Include dates, employer, location, job position, pay rate and the reason for leaving the position. If you have children, also include whether the children were around and, if so, whether this affected the work at all. For example, if your wife claims that she cannot work because she has to take care of your children, and yet she worked even part-time while they were younger, she will have a hard time selling that claim to your judge. In most states, whatever information you do not have you are entitled to obtain from your wife and/or her employers through the investigatory process called “discovery.”
Recent History – Do not forget to highlight what your wife is doing now. Again, use your rights to discovery to get the most recent, reliable information. If your wife is in school, consider whether the demands of school (commute, study time, class time, projects, tests, costs) are similar to the demands of work. If your wife volunteers, consider the same. Many of the same tasks used to work we apply to school and volunteering, babysitting for friends and family, and caring for family members, so, again, she will have a hard time selling her claim that she cannot work if she does these things.
Vocational Exam – A vocational exam is a test designed to identify what sills the test taker has, how those skills translate to different job categories (e.g., talkers are good with customer service, mechanical-oriented thinkers with manual labor) and what income the test taker could earn if he or she used those skills. The test is a combination of self-reflection and reporting, interviews with the expert and, for claims of physical impairment, physical application. Courts review these regularly for job loss claims in personal injury and automobile accident cases, but they are also common for divorce cases in which one spouse claims she or he cannot work. Experts can be expensive, so be sure to do a cost-benefit analysis with your lawyer.
Market Conditions – If nothing else, be sure to provide the judge with proof that jobs you claim your wife can work are actually available. In all states, the inquiry is not whether your wife has the skills to work but the “capacity” to work, which means the actual ability to do so because such work is actually available to her. There are a number of public databases, which would constitute business or public records and almost always be treated as non-hearsay, that you may use to find this information.
Review – If they are not, or if you think that your wife could get a better job after your divorce, consider a review of any alimony award after a period of time so that you can reassess her skills and the job market.
Whatever you do, do not simply focus on what you can or cannot pay your wife. It is natural to fall into the defensive mode and point out what you cannot do – but, the alimony question looks not just to what you cannot do but, more importantly, what your wife can do.