Vocational Evaluations in Divorce and Alimony Cases

A vocational evaluation in a divorce or alimony case is retained because support and equitable distribution turn on what each party can earn, not only on what each party earns today. A party who left the workforce to raise children or run a household has no current wage but does have a vocational profile: education, training, prior occupations and acquired skills. A party alleged to be underemployed may be working below that profile; a party alleged to be overemployed may be earning more than the profile would sustain over time. A party re-entering the labor market after years away raises the question of how quickly, and at what wage. In each case the figure the court weighs is earning capacity, and the evaluation documents it from the records and the labor market rather than from either party's account.

The evaluation answers four questions, and an assignment may ask any of them. Employability: whether the party can find and hold work, and in which occupations, given education, training, work history and any restriction the medical records document. Underemployment: whether current earnings sit below what the party's profile would support in the local labor market, and whether openings actually exist at the higher figure. Return to work: for a party who has been away, how current the skills are, what wage is realistic at re-entry, and how long full capacity would take. Retraining: whether it is needed, what is available, and how long it would run. The method is the one described in What Is a Vocational Evaluation?; what differs is the question. A family-law evaluation projects prospective earning capacity for support purposes, while a personal injury evaluation measures what an injury removed from an existing capacity.

Counsel for either party may retain the evaluation, and the assignment may cover one party or both. The fact patterns that most often call for one:

• A party who has been out of the workforce for years and whose capacity to earn is disputed.
• A claim that a party is underemployed, or overemployed, relative to education and work history.
• A disputed return-to-work timeline: when a party could realistically be working, and at what wage.
• A retraining question: whether a credential or program is needed, and how long it would take.
• A post-judgment change in earning capacity, such as a new restriction or a completed degree.

In each of these the evaluation replaces two competing accounts with one documented analysis, and it reads the same whichever party's counsel commissioned it.

The shape of the engagement is simple: counsel scopes it, sends the file, and receives a report. Scoping settles the question asked and which party or parties are covered, and that choice decides the work that follows. The file is the evaluation's foundation: education and training records, the employment history with its earnings documentation, the financial records that bear on earning history, medical documentation of any restriction the party claims, and the court schedule and the case management deadlines the report has to meet. An interview and standardized testing are added when appropriate, when the profile cannot be documented from the records alone. The report then sets out the profile, the occupations and wages it supports, and the basis for each opinion. The sequence of steps is on the matrimonial process page.

The report gives counsel and the court three things they can check: the occupations the party's profile realistically supports, evidence that openings exist for them in the relevant area, and the wages those occupations pay, from the Occupational Employment and Wage Statistics program (U.S. Bureau of Labor Statistics, n.d.) and, for earnings by education and area, the American Community Survey (U.S. Census Bureau, n.d.). What the court does with those findings is the court's determination under the family-law framework that governs the forum: whether income is imputed, the figure attached to it, and how that figure enters the support calculation are legal questions, and the report does not predict them. One method serves both sides of the question: the party asserting underemployment and the party denying it receive the same analysis, an overemployment claim is examined the same way, and the report may conclude that current earnings already match capacity.

When the other party discloses a vocational report, a separately scoped review tests five things. The records basis: what was read, what was missing, and whether the conclusions outrun it. The restrictions applied: whether the limits used are the ones the medical records document or an assumption. The occupational analysis: whether the occupations identified match the party's actual skills and training when coded against the classification systems (U.S. Department of Labor, Employment and Training Administration, 1991; National Center for O*NET Development, n.d.). The labor market evidence: whether openings were shown to exist or merely asserted. The wage sources: whether the figures are published data for the right area and occupation. The product is a written critique and, if needed, testimony.

Cost follows the time the assessment takes, billed hourly against a retainer under a written engagement agreement, and three things move it most: how many issues are disputed, and for how many parties; the size of the records file; and whether the matter reaches deposition or trial. A written fee schedule and an estimate for the requested scope come before work begins; the drivers and the billing terms are on the matrimonial cost page. In a matrimonial matter the report is typically 30 to 60 days from receipt of complete records, and because the court schedule and case management deadlines are settled when the engagement is scoped, the report date is fixed against the hearing from the outset; the phases are on the matrimonial timeline page.

Three experts can appear in the same divorce, and each stays inside a discipline. The vocational expert, holding a credential such as the Certified Rehabilitation Counselor (Commission on Rehabilitation Counselor Certification, n.d.) or the ABVE Diplomate (American Board of Vocational Experts, n.d.), answers one question: what a party can earn. A forensic accountant values a business or traces income through its records, which a vocational expert does not do; what the accountant covers, and where an economist's work begins, is set out in the forensic economist versus accountant comparison. A custody evaluator addresses parenting arrangements and has nothing to say about earning capacity. Each opinion is confined to its own field, and none of them decides the legal result.

KWVRS accepts matrimonial vocational engagements in every state; counsel confirms the governing standard in the forum, and these pages carry the state framing:

• New Jersey
• New York
• Pennsylvania
• Connecticut
• Massachusetts