Vocational Evaluation in Family Law Cases

Guest blog authored by:

Candace Peeples – Birmingham Family Law Attorney

Candace B. Peeples

Matrimonial and Family Law Attorney

2956 Rhodes Circle

Birmingham, AL 35205

(205) 403-5577

www.peepleslaw.com

In many family law cases, as the need for substantive data to support requests for Alimony (permanent, term, or rehabilitative) and Child Support have increased, so has the need for thorough assessment of current earning capacity or vocational potential. Determining what earning ability each spouse should be held to “post-marriage” is a difficult and complex dilemma. Often times a spouse is out of work voluntarily and by the agreement of the parties (such as for health reasons or raising children). Other times, a spouse is unemployed involuntarily (such as frequent job changes, inability to maintain jobs for disciplinary reasons, or general downsizing and/or layoffs.) In either situation, as the issues arise regarding contribution to the support of one spouse or the children, determining the earning capacity which either spouse should be responsible for will be a critical issue.

In these cases, a vocational evaluation (sometimes also called an employability or spousal rehabilitation assessment) may be performed by a Vocational Expert (VE) to determine the highest level of occupational functioning, the ability to make a financial contribution, and/or the need for further training and/or education. The Vocational Expert may provide professional evaluations, testimony and opinions in regard to any or all vocational aspects of a case. Once these professional evaluations are made and the expert determines what a party “should” or “could” earn, the court is asked to hold that person to that earning capacity. Often these questions arise during a divorce action or are revisited post-divorce due to a change in circumstances by either party. A Vocational Evaluation may be requested for either party or by either party to identify careers compatible with that individual’s training, skill set, experiences, background or education.

Why Ask for a Vocational Evaluation

Vocational Experts may be an excellent resource in relation to the following areas:

Vocational/job skill requirements and transferability issues;
Re-training or educational transition requirements in today’s job market;
Effects of injury/illness on one’s ability to work and on earning capacity;
Exertional, non-exertional, and other requirements or restrictions of various types of work;
National/local labor market trends, changes and statistics;
Employment practices and expectations of hiring organizations;

Who Asks for a Vocational Evaluation

An evaluation may be requested by either party or their attorneys at any point in the divorce process to help in settlement efforts or in a trial strategy to assess the type or extent of alimony/spousal support which is warranted. An evaluation may be requested by the payor spouse or the receiving spouse depending on the specific circumstances. A sample Motion for Vocational Evaluation is attached to this handout. Often times, the Judge may even order this type of testing in cases where a question exists as to either party’s income potential or capacity for employment.

The type spouse where vocation testing could be appropriate are:

The unemployed
The under-employed
Career-changers at any age
New Workers
Down-sized workers
Disabled Individuals
Students/Adult Children

The Process

The process usually begins with the attorney retaining the Vocational Expert. Most vocational experts will have a list of requested background information.

Examples of relevant personal date which is generally requested are:

Educational / training history – dates, locations, degrees/certifications, licenses.
Current/former employment history – dates, locations, employers’ name, job titles, requirements, wage rates.
Medical/psychological problems/restrictions – dates, related pain/discomfort. This information may be analyzed relative to the individual’s ability to engage in the physical, mental, or social aspects of employment.
Medications/treatments/side effects
Family/marriage relationships – living arrangements
Ability to engage in exertional activities (walking, lifting, carrying, standing, sitting, pushing/pulling, and bending)
Ability to engage in non-exertional activities (concentration, memory, social interaction, family interaction, public interaction, following instructions, other thinking skills).
Former/current daily living activities, hobbies, sports, interests, social activities.
Future goals/plans – Career, educational, employment or otherwise.
On rare occasions, financial documents, tax filings, personnel files, educational documents, and other relevant background information may be requested or provided to the expert.

For most evaluations, the expert will also want to interview the individual. Prior to the interview many evaluators will send questionnaires for the subject spouse. These cover such topics a current and former work history, educational background, and daily living activities. After a review of the all of this documentation, the interview and remaining steps in the evaluation take place. Appropriate vocational testing is conducted to determine aptitude, vocational interests, etc. After the testing, the expert must interpret the data and make some vocational analysis relative to the subject spouse. A discussion of career options, job market information, and recommended actions are then presented. Job search strategies and sample available offerings are assessed. At this point, the expert will likely discuss with the retaining attorney his or her impressions and a written report can be provided if requested. Further consultations and expert witness testimony can also be provided by your expert if this is necessary in your case. The specific format may be adapted to the individual case and ranges from a single-session vocational update interview to a multi-session complete assessment.

Vocational Evaluation in Family Law Cases