Susan W. Miller, M.A.

Published in Spring 2001 Newsletter
Association of Certified Family Law Specialists

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.


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.


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:

  1. Evaluate the current and future earning capacity and employability of a supported/supporting spouse.

  2. Estimate a realistic length of time for a supported or supporting spouse to find
    work in the current labor market.

  3. Assess efforts of a supported/supporting spouse to seek employment, build a business or explore career options.

  4. Demonstrate a spouse's lack of education, work-related skills and earning capacity.

  5. Determine the costs and duration of education and training for future career options.

  6. Ascertain to what degree factors such as age, physical or emotional health limit employability.

  7. Identify potential costs related to child care resulting from a spouse's returning to work.

  8. Compare actual earnings to potential earning capacity of a supported/supporting spouse.

  9. Establish a supporting spouse's lack of earning capacity and inability to meet support demands.

  10. Consider changes in circumstances of either spouse's wage earning capacity and employability.

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:

(1) (A) The marketable skills of the supported spouse; the job market for those skills; the time and expenses required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(3) The ability of the supporting spouse to pay, taking into account the supporting spouse's earning capacity, earned and unearned income, and standard of living.

(7) The ability of the supported spouse to engage in gainful employment without
interfering with the interests of dependent children in the custody of the spouse.

(8) The age and health of the parties.

FC §4331 (e) and (f) refer to the use of the vocational examination and the qualifications of the vocational training counselor.

(e) In any proceeding under this section, the court may order either party to submit to an examination by a vocational training counselor. The examination shall include an assessment of the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination shall be on an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living.

(f) For the purposes of this section, "vocational training counselor" means an individual with sufficient knowledge, skill, experience, training, or education in interviewing, administering, and interpreting tests for analysis of marketable skills, formulating career goals, planning courses of training and study, and assessing the job market to qualify as an expert in vocational training under Section 720 of the Evidence Code.

A vocational training counselor shall have at least the following qualifications:

(1) A master’s degree in the behavioral sciences.

(2) Be qualified to administer and interpret inventories for assessing career potential.

(3) Demonstrated ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints.

(4) Knowledge of current employment conditions, job market, and wages in the indicated geographic areas.

(5) Knowledge of education and training programs in the area with costs and time plans for these programs.

Subsection (g) provides:

(g) The court may order the supporting spouse to pay, in addition to spousal support, the necessary expenses and costs of the counseling, retraining, or education. By allowing for these costs, the law acknowledges that the earning capacity of a supported spouse who has been unemployed or underemployed during the marriage can be significantly enhanced by retraining or education. In general, a higher level of education increases earning capacity, enabling a formerly supported spouse to earn at a level closer to the marital standard of living. Counseling may also provide support for self-assessment, career exploration and job search as well as information on educational programs.


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.