As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
After nearly a month of doing landlord/tenant blog posts, I decided today I would break off and get back to other areas of law. For today's topic I've chosen an issue that comes up with a great deal of frequency in the family law field. What happens if someone asking for support, or paying support, knows that their income will affect what they pay or what they get, and so they decide to either quit their job, take a lower paying job than they should, or not pursue increased income opportunities that they reasonably should pursue? The fact is, if you believe the other party in your case is doing this, you do have a way to either force them to take higher paying work, or get the court to treat them as though they are paid more.
The Law of Underemployment and Support
In a case involving child support, spousal support, or both, if either party is unemployed, or accused of being underemployed, it is that party's burden to prove that they are not. That is - it is that party's burden to prove that their unemployment or underemployment is through no fault of their own. There are many reasons that someone could be unemployed or underemployed through no fault of their own - they were laid off and have not had enough time to find a new job, they were a stay-at-home parent for 15 years by agreement of the parties and now have been out of the job market too long to get a new job, they are disabled, etc. Nonetheless, it is frequently very challenging to prove to a court that your unemployment or underemployment is involuntary. If you were fired for cause, if there are jobs that you can still do despite your disability, if you have not been applying for jobs frequently enough, etc., the court may very well find you voluntarily unemployed or underemployed.
So, what happens if the court does find that someone is voluntarily unemployed or underemployed? In that case, the court has the right to "impute" income to the person. What this means is that the court for calculating support will treat that person as though he or she earns more money than they actually do. That, however, is where the simplicity ends. This is because while it is the burden of the person who is under or unemployed to prove that this is involuntary, once the court finds it voluntary, it is the burden of the other party to prove what the voluntarily under or unemployed person should be earning. If your ex is found to be voluntarily unemployed, but you cannot convince a judge of what he should be making instead, the judge will still treat him as though he earns nothing.
Simple Proofs of Earning Capacity
Sometimes there are easy ways to prove what a voluntarily under or unemployed person should be making. For example if someone was fired for cause or quit without good reason just a couple months earlier, a judge will likely accept the person's prior income. Similarly, if the person turned down higher paying jobs without a good reason for doing so, the court will likely accept that income. But what happens when you don't have that situation? What happens when someone was fired for cause five years ago, and has simply refused to look for new work ever since? A judge certainly is not going to impute five year old income, so where do you go from there?
Vocational Experts
What may surprise people to know is that there is an entire class of expert witnesses out there who can speak to this exact issue. These people are known as vocational experts, or vocational rehabilitation specialists. These individuals have spent their adult lives studying job markets, job skills, etc. and are able to calculate earning capacity, along with the availability of jobs at that earning capacity. A vocational expert will interview the allegedly involuntarily under or unemployed person, investigate their work history, and put together a report indicating whether the person is employable, and if so, what they should be making and how many jobs are available at that income level.
There are a very small number of these experts in any given area, so it is likely that your judge will know your expert. Evidence presented by vocational experts is frequently accepted by judges and used to impute income. Best of all, in the grand scheme of legal expenses, vocational experts are not all that expensive, running around $3,000 to $5,000 if they have to testify in court (considering the amount you could save on support or increase you could get in receiving support, the expert really pays for herself).
What If My Ex Doesn't Cooperate?
So, you will note that the vocational expert's work includes an interview with the person. So, what if your ex simply refuses to be interviewed? Fortunately, the General Assembly has recognized how important a part of the support process a vocational expert is, and in 2010 it adopted Virginia Code Section 20-108.1(H) which allows you to file to get a court order requiring your ex to cooperate with the vocational expert's evaluation. Moreover, this provision allows you to seek the costs and fees associated with this process - a useful tool to hold on to in order to encourage cooperation. As a result, your ex refusing to submit to the interview could result in a finding of contempt of court, which will only help your case.
Conclusion
If you are involved in a spousal or child support situation and your ex is voluntarily under or unemployed, the burden is on you to prove what he or she should be making. Fortunately, vocational experts exist to help guide you through this process and come out with a number a court is highly likely to accept. If you are in a support situation involving voluntary under or unemployment, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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