VOCATIONAL EXAMINATIONS IN FAMILY LAW
Published in Spring 2001 Newsletter
Information gathered in a vocational examination and/or from local labor market research can be used to determine reasonable and realistic expectations of an individual's current and future employability and earning capacity. Findings, documented in a vocational examination report, are often pertinent to the determination of the amount and duration of spousal and child support.
Earning capacity has been defined by the California Supreme Court as "the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history and the availability of employment opportunities." Marriage of Simpson, (1992) C.4th 225, 14 Cal. Rptr. 2d 411.
I. VOCATIONAL EXPERT REPORT AND TESTIMONY
According to Family Code (FC) §4331, a typical vocational examination report and expert testimony should analyze, summarize and document findings and include information on location, cost and duration of education and training, availability of geographically convenient, current and future job openings, salary data and approximate job search time. In my reports, the conclusions and my opinions are generally based on an in-depth interview with the person being examined, assessment exercises to determine career values, marketable skills and occupational options, as well as vocational testing to determine abilities. Labor market research is conducted based on the data collected about the person being examined and four copies of the report are produced.
II. WHY USE A THE VOCATIONAL EXAMINATION IN FAMILY LAW
The legislature's intent in enacting the original statute, Civil Code 4801(e), in 1982 was, in part, to encourage the parties to become self-supporting and less dependent on continuing financial ties to a failed relationship. The statutory scheme reflects a presumption in our society that people will contribute to their support to the best of their ability. Further, in the late 1980's, cases such as Marriage of Gavron, (1988) 203 Cal. App. 3d 705, 250 Cal. Rptr. 148, increased the use of the vocational examination as a process to make formerly supported spouses aware of the obligation to demonstrate reasonable diligence in making efforts to contribute to their own support.
With regard to supporting spouses, because of a variety of personal, economic, and work place factors, career and job changes are more frequent than ever. Increasingly, this results in supporting spouses attempting to modify support orders to reflect their change in circumstances, raising the question of earning capacity versus actual earnings. Recent cases (Marriage of Meegan (1992) 11 Cal.App.4th 156, 13 Cal.Rptr.2d 799) have questioned motives of the supporting spouse's career change when it results in lowered earnings. In Marriage of Ilas (1993) 12 Cal. App. 4th 1630, 16 Cal.Rptr.2d 345, the Court of Appeal held that a support award could be based on a supporting spouse's earning capacity even when there is not a deliberate attempt to refuse to maintain or seek gainful employment. In this case, a pharmacist, who stopped working to attend medical school, did not have the right "to divest himself of earning ability at the expense of his former wife and two minor children."
As the work place and the local labor market continue
to change, the vocational examination can be instrumental in providing
current, specific, realistic expectations regarding employability and
earning capacity of either a supporting or supported spouse.
Ten common reasons to use a vocational examination:
III. FAMILY CODE §§ 4320 AND 4331
FC §4320 directly address the work and vocational issues that are dealt with in a vocational examination. FC §4320 (1) (A), (3), (7) and (8) provide:
FC §4331 (e) and (f) refer to the use of the vocational examination and the qualifications of the vocational training counselor.
A vocational training counselor shall have at least the following qualifications:
Subsection (g) provides:
IV. PROCEDURES FOR APPOINTING A VOCATIONAL TRAINING COUNSELOR
The appointment of a vocational training counselor may be made by noticed motion or by stipulation. The motion should be supported by points and authorities and a declaration establishing its necessity. The motion should specify the time, place, manner, conditions and scope of the examination, as well as specifying the name and address of the vocational counselor.
In addition, the court, upon finding that the use of such an expert is necessary, may, on its own motion, under Evidence Code (EC) §730, appoint a vocational training counselor at any stage of the proceedings. The report prepared by the vocational training counselor may be introduced as evidence under EC §1509.