If you are going through a divorce, you would normally expect cases that involve self-employed spouses to be simple. In reality though, they rarely are anything but simple. Irrespective of the order that is made by the judge in such an issues, there are accusations flying left right and center that the idle spouse refuses to work or has a higher ability to earn than what they are currently on.
This is one issue that has been dealt with in detail in cases of family law. From our experience, we can tell you that these situations occur in cases of high net and middle income divorce cases where spousal support can be considerably high.
The common conception amongst parties taking part in a divorce case is that the courts are concerned with only the income of the spouses before making the spousal support order. This however is not necessarily the case. In cases where there are accusations of the spouse being able to work and not working, the courts have the discretion of looking at the earning capacity of the spouse. The words “earning capacity” not only means the amount that the spouse actually uses, it also highlights the amount that a spouse is capable of earning based on his or her education, skill set, and work experience. In such cases it must be understood that there is a broad discretion available to the courts.
The Opportunity and Ability to Earn
In divorce cases, the judge will often calculate the earning capacity by taking a number of factors into account. They will typically take a look at the employment record of the spouse, their age, health and education in doing so. The onus of showing that the other spouse can earn more than they currently do will rest on the spouse that is making the accusations. It is often beneficial and worth the money to seek a vocational evaluation of the supported spouse in order to help determine their qualifications and available positions in the area that the supported spouse lives, because proving qualifications is one thing but it is also necessary to prove that there are available positions for the supported spouse out there.
If the other spouse is able to prove to the court that the other spouse can indeed warn more than they do, the family court can use their discretion to impute their income accordingly.
Gerald A. Maggio is an experienced Orange County divorce attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.