By Jennifer M. Paine
If the threat of paying alimony to your ex-wife has you worried, the prospect of having to prove what she can earn to eliminate, or at least minimize, that threat is probably worse.
For many men, the time around a pending divorce may also be filled with job hunting, lower than usual income or overall less than perfect circumstances.
On top of that, there can be deadlines from the court, pretrial conferences, discovery requests from your wife’s attorney, appraisals, house searching, testing schedules for parenting time and the overall unpleasantness of the divorce itself.
With all of this occurring at the same time, it is not a surprise that the burden of having to prove what your soon-to-be-ex can earn is a heavy one. There are certain steps that attorneys can take to make this process easier, but those going through the divorce can take part as well.
History – Make a timeline of your wife’s work history, which you may use for both settlement discussions and trial. You should include dates, employers, locations, job positions, pay rates and the reasons for leaving each position.
If you have children, don’t forget to include whether the children were around and, if so, whether this affected the work at all. For example, if your wife claims that she cannot work because she has to take care of your children and yet she worked part-time or full-time while they were young, she will have a hard time selling that claim to your judge. In most states, whatever information you do not have you are entitled to obtain from your wife and/or her employers through the investigatory process called discovery.
Recent History – Do not forget to highlight what your wife is doing now. Again, use your rights to discovery to get the most recent, reliable information. If your wife is in school, consider whether the demands of school (commute, study time, class time, projects, tests, costs) are similar to the demands of work. If your wife volunteers, consider the same.
Many of the same tasks that we do when we work also apply when we go to school, volunteer, babysit for family and friends and care for family members, so your spouse may have a hard time selling her claim that she cannot work if she does these things.
Vocational Exam – A vocational exam is a test designed to identify what skills the test taker has, how those skills translate to different job categories and what income the test taker could earn if he or she used those skills.
The test is a combination of self-reflection and reporting, interviews with an expert and, for claims of physical impairment, physical application. Courts review these regularly for job loss claims in personal injury and automobile accident cases, but they are also common for divorce cases in which one spouse claims she or he cannot work. Experts can be expensive, so be sure to do a cost-benefit analysis with your lawyer.
Market Conditions – If nothing else, be sure to provide the judge with proof that jobs you claim your wife can work are actually available. In all states, the inquiry is not whether your wife has the skills to work but the capacity to work, which means the actual ability to do so because such work is available to her. There are a number of public databases that have information constituted as business or public records. These are almost always treated as non-hearsay, and you can use such databases to find this information.
Review – If the databases you can find are not treated as non-hearsay, or if you think that your wife could get a better job after your divorce, consider a review of any alimony award after a period of time so that you can reassess her skills and the job market.
Whatever you do, don’t simply focus on what you can or cannot pay your wife. It is natural to fall into the defensive mode and point out what you cannot do. But the alimony question looks not just to what you cannot do but, more importantly, what your wife can do.
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.