Earning Capacity in Massachusetts Alimony Cases

The alimony page of the Massachusetts Court System, offered by the Probate and Family Court, states that alimony is court-ordered support paid by one spouse to the other for a period of time after a divorce, and that it is paid by a spouse who has the ability to pay to a spouse in need of support. Only people who are divorcing or are divorced, the page says, can ask for and receive it. A spouse who is getting divorced asks for alimony as a part of the divorce process; it is not a separate procedure. A spouse whose original divorce judgment did not mention alimony can file a complaint for alimony for the first time at any time after the divorce. And the person paying alimony or the person receiving it can ask for a change, or both can ask together. The page links a further page on how the court decides on alimony and another on the types of alimony; neither is quoted here, and nothing in this guide describes how the court decides. The page's own phrases, ability to pay and need of support, mark where a vocational expert's work sits: counsel may bring an earning capacity question where either phrase is in dispute, and an earning capacity assessment addresses what a spouse could earn, for either spouse. The assessment does not say what alimony should follow.

Alimony is a matter for the Probate and Family Court Department, whose page says it handles court matters that involve families and children, like divorce, child support and wills, and that it has jurisdiction over family-related and probate matters such as divorce, paternity, child support, custody, parenting time, adoption, ending parental rights, abuse prevention, wills, estates, trusts, guardianships, conservatorships and name changes. Alimony appears on that page among the services the court offers, beside divorce, child support, child custody and parenting time, and filing financial statements. The court sits in divisions across the Commonwealth, and its page says it has opened virtual registries where court users can get face-to-face virtual help from court staff. For Suffolk County the Suffolk Probate and Family Court sits in Boston; its location page directs inquiries to the court's virtual registry and links a guide to remote hearings and eFiling in the Probate and Family Court. Appeals from the trial courts go to the Appeals Court, which its page calls the Commonwealth's intermediate appellate court. The assessment is prepared for the division in which the matter is pending, and the Massachusetts matrimonial page carries the court, the wage area and the method for the Commonwealth as a whole.

The question reaches KWVRS in a handful of recurring forms, and each is a question about capacity rather than about the order that should follow. The first is the spouse who has been out of the workforce, often through years of child-rearing or of unpaid work in a family business, and whose education and earlier employment still point to an occupation: the assessment names the occupation, what it pays in the spouse's area and how long a return, with any retraining, would take. The second is claimed underemployment, where one spouse says the other works below what that spouse's education and work history support: the assessment reports what that background supports and whether such work exists where the spouse lives. The third is a claimed disability, where the medical record, not the claim, fixes the restrictions, and the assessment lists the occupations that remain within them and their wages. The fourth is a parent caring for a disabled child, whose capacity is measured against the hours and the schedule the child's documented care leaves free for work. The last is the post-judgment change: the alimony page says either spouse can ask the court for a change, and the question reaches KWVRS where a spouse's health, employment or labor market has changed since the order; the assessment sets the earning capacity at the time of the order beside the capacity now, from the records of both dates. In every form the assessment may be of the spouse who would pay or of the spouse who would receive, and the conclusion may be that the spouse already earns at or above capacity.

The assessment begins with the records: school and training transcripts and certifications; the employment history with its earnings documentation; the financial statements filed with the court (the Probate and Family Court's page lists filing financial statements among its services); and the medical records where a restriction on work is claimed, since a restriction is applied from the record and never assumed. The spouse is interviewed where the question calls for it, and standardized testing is added where the records alone cannot document skills and aptitudes. A transferable skills analysis identifies the occupations the spouse's education, training and work history open, coded against the occupational classification systems so that an opposing expert can check each match. A labor market survey then prices those occupations in the spouse's own area and asks whether employers there are hiring for them. The wages come from the Occupational Employment and Wage Statistics program of the U.S. Bureau of Labor Statistics, whose metropolitan area estimates name the Boston-Cambridge-Newton, MA-NH area for a spouse who lives and works in Boston or the communities around it, and the published area for a spouse elsewhere in the Commonwealth; the unemployment rate of the same area comes from the Local Area Unemployment Statistics program, which its page says produces labor force data for states, counties, metropolitan areas and many cities by place of residence. The report names the area it applied and explains the choice where a spouse's work history reaches into a second labor market. The method is the one the divorce and alimony guide describes for every state; what this guide adds is the Massachusetts forum, its own alimony page and the wage areas the Bureau publishes for the Commonwealth.

The written assessment keeps the figures apart: what the spouse earns now, from the earnings records, and what the occupations open to the spouse would pay, from the published wages for the area, with the time and any retraining a move between them would take. It lists the records read and those requested but not received; the restrictions, each tied to the medical record that states it; the occupations and the classification each was coded under; the employers contacted and what they said about openings and pay; and the wage and unemployment figures with their series and area named. It states the opinion and the reasoning that connects it to the record, and it states the limits of the opinion with the same care. The assessment does not say whether income should be attributed to a spouse, at what figure, or what alimony should follow: whether the court attributes an income to a spouse, and how any such figure enters the order, is the court's determination under the framework counsel confirm, and the report does not forecast it. The opinion may be that the spouse is already earning at or above capacity, or that the documented restrictions leave less open than the other spouse claims; the file decides.

KWVRS accepts matrimonial engagements from either spouse's counsel, the evaluation may be of either spouse, and the opinion is neutral whichever party retains it. The methodology does not change with the retaining party: one set of records, one occupational classification and one published wage series support the opinion whether the spouse assessed is the one who would pay or the one who would receive, and the other side's expert can reproduce each step and dispute the conclusion on its merits. Counsel frames the question, the scope settles whether one spouse or both are assessed, and the engagement is confirmed in writing with a fee schedule before work begins. When the other side has disclosed a vocational opinion, a separately scoped review examines its records basis, the restrictions it applied, its occupational analysis, its labor market evidence and its wage sources, and reports where its conclusions outrun the file. Nothing in the assessment speaks for the court, and the report is written so that a reader who has never seen a vocational report can follow it from the records to the opinion.

The report is organized to the disclosure requirements of the Probate and Family Court division in which the matter is pending, and the Massachusetts expert disclosure page summarizes the Commonwealth's practice for expert reports as the pages it cites state it. Deposition and trial testimony follow the court's schedule, and the report is delivered to the date counsel takes from the court's order. The Suffolk Probate and Family Court's location page links a guide to remote hearings and a virtual registry; whether an expert may appear remotely in a given matter depends on the division and on the arrangements counsel make, and this guide states no forum's rule on it. Where the matter also involves child support, counsel may ask the same question of a parent's earning capacity, and where future care for a disabled child is in the frame a life care plan may be prepared alongside the assessment. Attorneys confirm the governing rule for their case.

The Massachusetts pages that carry the court, the wage areas and the matrimonial method this guide describes, with the Boston page whose entry names the Suffolk Probate and Family Court:

• Matrimonial vocational assessments in Massachusetts
• Expert disclosure in Massachusetts
• Massachusetts
• Boston
• Vocational evaluations in divorce and alimony cases
• Matrimonial and family law services