Ask a Divorce Lawyer: Can the court force my ex to get a job?

Question: Can the court force my ex to get back into the workplace and get a job? 

I’m breaking my back working so much just to afford the child support and alimony that she’s living off of. I pay so much to them that she doesn’t even need to get a job. In no way is this fair. 

So can it be done? Can the court tell her to get to work and start contributing?

 

 

Answer: The short answer is that it depends on the circumstances of your marriage, the age of your children, your ex wife’s ability to work, and the laws in your jurisdiction.

In most jurisdictions, each parent has a duty to support their children.  Depending on the laws in your jurisdiction and the details of your situation, you may be able to obtain a Seek Work Order or a modification of support which imputes income to your ex-wife based on her earning capacity.

A Seek Work order requires a party to do just that, seek work.  You would motion the court for the order and the court would have a hearing to determine whether she should have to seek work.  If the motion is granted and after a reasonable period of time the Court finds that your ex has not made diligent efforts to seek work, she could then be held in contempt which could include a monetary sanction and/or jail time.

Many jurisdictions allow the Court to impute income to a party who makes a voluntary and unreasonable decision regarding his or her employment.  The term is called “shirking” and the question is whether or not her decision to not return to the workplace is reasonable.  If imputing income is available, your attorney will have many questions to determine whether the circumstances of your case present a shirking argument.  I would specifically want to know how old your children are, how many children you have in common, the length of your marriage and the details of her previous employment.  In my jurisdiction (Wisconsin), the Courts have found a custodial parent’s decision to not return to work was reasonable when the parent was providing care for the child during the day. 

Of the states that impute income to a parent, jurisdictions also vary as to the amount of income that is imputed. Some jurisdictions determine whether or not she is capable of work, and if so, the Court will impute minimum wage and determine the number of hours she is available for work per week. Some jurisdictions impute to earning capacity or earning potential.  Often times a vocational evaluation must be performed by a vocational expert to determine her earning capacity.  Some courts have been reluctant to impute income to earning capacity however given the present economy and lack of jobs available. 

You should contact an attorney licensed in Massachusetts to discuss your case and to determine whether or not the laws of Massachusetts can provide you with any relief.

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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