Surviving the Vocational Evaluation
The vocational evaluation is a process used sparingly in divorce, but if you’ve been through one, you know how challenging it can be. It’s a process used in divorce cases to assess the earning potential of a spouse who is seeking spousal support (also known as alimony or maintenance) or to determine their ability to pay support.
During a vocational evaluation, an expert will be hired to assess the spouse's skills, education, work history, and job market opportunities to determine their potential earning capacity. Moreover, the vocational expert may conduct interviews, review documents such as resumes and job applications, administer job candidacy tests, and research job opportunities in the local job market.
The results can be used by the court to help determine an appropriate amount of spousal support. In the best case, it can be used to help the spouse seeking support to develop a plan to improve their earning capacity. But there’s no way to sugarcoat it: the process can be frustrating, invasive, and humiliating.
This week, Seth walks through the process: who does it, what they collect, and how a vocational evaluation can impact your divorce.
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Pete Wright:
Welcome to How To Split a Toaster, a Divorce Podcast about saving your relationships from TruStory FM. Today we are preemptively assessing your toaster's ability to brown.
Seth Nelson:
Welcome to Show Everyone, I'm Seth Nelson as always, I'm here with my good friend Pete Wright. Do you love performance reviews? Do you live for that feeling you get when you know someone else is watching you and determining your value at work based on things that are largely out of your control? Then you're going to love today's topic, the vocational evaluation.
Pete Wright:
You did great on that read, Seth. That was really intense and it matches the level of mind blowing intensity that I had when you dropped this term last week because we've never talked about it. We've never talked about this.
Seth Nelson:
So it is a term that we prefer not to have to use.
Pete Wright:
Yeah, I'll bet.
Seth Nelson:
Because one of the things you do as a lawyer is you get a lot of information in and then you have to evaluate the case and one, determine what the issues are, and then if there is an issue, how do you present information in the form of what would be evidence to the court for the judge to make an informed decision? And vocational evaluation only comes up when one party is saying that the other party is either unemployed or underemployed.
And the only reason they care about those two facts or issues is because they think that person, the other side, their spouse, their other parent if we're talking about child support should be making more money and if they're going to make more money, how does that impact the case? It might impact the child support number. It might impact the alimony number. It might impact the attorney fees number.
Pete Wright:
Okay.
Seth Nelson:
So this is all about cash.
Pete Wright:
What you just described matches my emotional reaction to the whole process. So it is pretty disgusting. I've had my colonoscopy already. I don't need to do this. So let's talk about what is included in the vocational evaluation.
Seth Nelson:
Okay. So set the scene. You have a party who's a stay-at-home mom for 10 years.
Pete Wright:
Okay.
Seth Nelson:
Hasn't worked. Has helped further her spouse's career. The spouse is now saying, guess what? She should be working. And when I met her, she was making $100,000 and she has an MBA and she was working in business. And when we got married, she worked for another five years, and now we decide to have kids a little late because we worked on our careers and we kind of met late. And so at age 40, when she had her first child, our first child, she stopped working. She's been out of the workforce for 10 years.
Pete Wright:
Okay.
Seth Nelson:
She's going to say, I can't get a job. I've been out of the workforce for 10 years. I know I have an MBA and I know I have all these skills, but.
Pete Wright:
They're 10 years out of date.
Seth Nelson:
Exactly. And what in Florida, check your local jurisdiction, In Florida, the judge cannot make you get a job because the judge can't force anybody or company to hire you. The judge cannot make you do a good job. The judge can't make you go to work. There's all these things that the judge can't do.
Pete Wright:
You say check your local jurisdiction. Are you saying that because you don't know what other states do or because you know other states do stuff different?
Seth Nelson:
Both.
Pete Wright:
With regard to some.
Seth Nelson:
States do it differently. I don't know what other states do.
Pete Wright:
Okay. Fair enough.
Seth Nelson:
So now the judge is in Florida, all I have to do to get an imputation of a wage, because that's what a vocational evaluation will do. It will ultimately say, in Florida, judge, judge, here are this person's skillsets. Here's her educational background, here's her work history. Here is a job that is open and available in this location that is earning or paying X number of dollars. Let's call it a hundred grand. If all that is true and the judge believes it, the judge could look at the spouse and say, "ma'am I appreciate that it's tough to get back in the workforce, but here's a job that you are qualified for making a hundred grand. I can't make that person hire you. But those are the type of jobs out there. Here's a specific one. I am going to act as if you are employed."
Pete Wright:
Wow.
Seth Nelson:
And I am going to impute $100,000 to you as a wage.
Pete Wright:
And suddenly all the calculation is thrown off significantly.
Seth Nelson:
Correct. Typically, this is done with people who are not working because these things cost 6 to 10 grand with the expert, and then you got the lawyer preparing and going to trial on it. So they're expensive and you don't know what the outcome is going to be. And you can't have it be too remote in time because then you can say, well judge, "six months ago that job was available".
Pete Wright:
Now it's not available anymore.
Seth Nelson:
So here's why I say it's usually done on people that are unemployed as opposed to underemployed. So let's talk about what underemployed means. Underemployed is you got a job making 60 and they think you could make another 40. So now that's a harder calculation because what they'll end up doing is do they want to spend the money on a vocational evaluation to try to get an extra 40 grand in the financial analysis. And if you look at the child support numbers, if you add 40 grand to anybody's income, even if you're making 40 and you're jumping it to 80, it doesn't move the needle that much on how much child support is paid. And if you making 40 grand additional and you divide 40 grand by 12, that's the next extra-
Pete Wright:
Real time math.
Seth Nelson:
... $3,300 a month. Okay? But then you got to take taxes out of that. So let's call it 2,750 bucks. I'm making up that number. But those numbers start getting narrower. So it's a lot easier for someone to say, she's not working at all. I'm getting a voc eval, as opposed to she's making 60, I want to push her to a hundred. That's a harder calculation.
Pete Wright:
In your experience, you would probably advocate against doing a vocational evaluation for somebody in that circumstance. If they're underemployed, just move along.
Seth Nelson:
I would advise my client, here's the cost, here's the risk and reward. That's what I do a lot as the lawyer, evaluate risk. And ultimately it's a client's decision.
Pete Wright:
The things that go into the vocational evaluation. So I'm sitting here, I'm unemployed, and let's say I'm the one who stayed at home for the last 10 years. You're looking at my work history, you're looking at my qualifications, my degrees, my education.
Seth Nelson:
Well, if you don't mind, and you can object to this and we won't do it, what's your work history?
Pete Wright:
I've been freelancing. This is actually a complicated thing, right? Because I was freelancing for a long time and now owned my own business. So that's been since 2006.
Seth Nelson:
Right. So here your wife could say, well, he owns his own business, but the last couple years he's been crushing it and last year he didn't do so well. And during this divorce, he's going down.
Pete Wright:
Let's say the pandemic really hurt me.
Seth Nelson:
Yeah. Well, that would be a reasonable explanation to why your business went down. But let's just say things have been just coasting up, up, up and all of a sudden the year before divorce goes down and now it's going down, down, down. She could be saying, I think that he is purposely underemployed because he's not working as hard in his business. Judge, look at all the work that we could do. So now I have to go, well, with Pete's skillset, there could be another job out there that isn't running his own business.
Pete Wright:
Well, let me change the calculation though for you because I think this might be actually easier. Let's just say again, I'm the one who's been staying home with the kids. We got two kids and they're growing up and moving out. And let's just say I stopped working when I started my own business in 2006. So now I have a significant gap in my employment history. And when I stopped working, I left a job as a director of public relations at a sizable international company. And then I stopped and went to nothing.
Seth Nelson:
Got it. So what I would tell my expert, here's the vocational evaluation is look at his skillset. Those skills didn't go away. They might be a little rusty, but they didn't go away. His awards that he got, his certifications, are they still active? Looking at what your career path was at the time, and how do you get back into that type of job.
Pete Wright:
Seth, according to the National Institute on Alcohol Abuse and Alcoholism, about 10% of children live with a parent with an alcohol use disorder. You see that far too often, I imagine.
Seth Nelson:
Yeah. And unfortunately I don't see it going away. So if it's not going to grow away, let's figure out how we're going to deal with it.
Pete Wright:
What are the things that you look for in helping a separating parent with an allegation of alcohol abuse in the family? What are you looking to help them do?
Seth Nelson:
Show that it's not happening. It's simple. It's going to be he said, she said, there'll be pictures and allegations. I find bottles of alcohol underneath the mattress. They're out in a soccer game and in their Tumblr is booze not water. You're going to hear all this sort of stuff. They're going to bring out all these other people to say What a drinker you are. Let's stop the he said, she said. Let's stop the litigation on this matter.
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But what it does is glitch you, the one being accused of not being able to control your alcohol consumption to show to the court when I'm with my kids, I'm not drinking. And it's more important for me to be with them than to have a drink. And here it is. So you can take everything she said, judge, it doesn't matter because I'm going to show you I am sober.
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And I wouldn't want to insinuate as the person being examined that things have changed in the market. But would I at any point raise my hand and say, look at all the gray hair now in my beard. Things have changed. The market has changed. Even though my skills are still good, it's going to be harder for me to get a job just because of how old I am.
Seth Nelson:
And that is part of the calculation that the vocational analysis will entail. Okay, we all know there is a bias of hiring someone who's 60 as opposed to 40, and that's part of what goes into that analysis. But remember the points you are making. You're not the first one to make these points. Judge, I'm 50 years old, who's going to hire me now? I haven't worked for 10 years. It's really hard to get a job.
Pete Wright:
That's a completely original idea.
Seth Nelson:
Right. And the judges heard that, and the judges had other cases where someone hadn't worked for 15 years. It also goes to the type of job that you might get. Yes, you might not get that $100,000 job, but you can get a job as a legal assistant, as an administrative assistant. You can find employment at 40 grand a year.
Pete Wright:
You can get something.
Seth Nelson:
Everybody always thinks like, well, "I'm not going to get back to where I was". That's not what a vocational assessment is about. It will look at that history, but it's looking at where are you now in the marketplace today, and are you qualified for this job taking into account the fact that you haven't been employed for 10 years. And these vocational evaluations, some of them just do VO evals, but a lot of them are like recruiters and they have other stuff where they're getting people types of jobs.
Pete Wright:
Well, that's actually a great question that I wanted to ask you about. What are the qualifications of the people who are doing this work?
Seth Nelson:
Yeah. There's no necessarily certification on this. To be an expert in Florida, it's a very low bar to get in court and say you're an expert. Do you have some special knowledge that will help the trier of fact, in our case, the judge help make the determination. And what is that?
Pete Wright:
That's a briefcase. Carry a briefcase. That's about it.
Seth Nelson:
Very narrow, thin sketch. Other lawyers listening, this might say, Seth, you're wrong on that. It's more. Yes, I get it. I know. We're just saying that you don't have to have any certain qualifications. There's not a certification to be an expert in voc eval. Right?
Pete Wright:
I wonder, like speaking in my case, is the person doing my vocational evaluation going to have some experience or expertise in public relations, marketing communications? Because that was my field.
Seth Nelson:
They might not have experience in that field. But what they do have experience in is getting you getting people jobs and evaluating them in the workforce. It's not any different than a forensic accountant doing a business evaluation. They might have never worked in the construction business, but they know how to value a construction business. They might have never worked in the podcasting business, but they know how to value the podcasting business because they are taught how to value different types of businesses. The fact that they've never worked in them is not really an issue.
Pete Wright:
What is the weight accounted for those who have been trying to get back in the workforce? Is there any discussion of, look, judge I've sent out 25 resumes in the last three months and I've heard nothing. The market is tight. Should that count toward my vocational evaluation?
Seth Nelson:
Yes. And here's how I do that, and I advise my clients to do that. I said, your job if you're unemployed, is to look for work. That is your job. This is all kind of in real time. Voc eval comes out and says, well, here's a job that's available. Apply for it. What happens if you don't get it? Now there's all this stuff about, well, did you tank the interview? So you have to deal with those types of issues where I have in the past subpoenaed the person who interviewed you.
Pete Wright:
Oh, wow. So you can get a sense for why did they not get this job for real in court?
Seth Nelson:
And they are going to be very cautious on why they didn't hire because people just say it's not a good fit. They're not going to get into details. But you ask questions. Did they dress appropriately in your view for the interview? Did they come prepared with their resume? All the things you teach high school kids to do and college kids to do. Did they do the basics? And when they say, well, they showed up in t-shirts and shorts and flip flops.
Pete Wright:
They threw away can of Schlitz on their way into the conference room.
Seth Nelson:
So absolutely. You got the picture. Yeah. But this process could take a while. You're going to be sitting down with the evaluator. It could last five hours, six hours to go through. You're taking tests to see what your skill sets are, your personality test, talking to them, kind of doing almost a mock interview. So there's all sorts of things that go on. And it's stressful because it's a balancing act where inherently as a human being that this person's job is to determine how much you can make. You don't think you can make a lot. If you did, we wouldn't be in this situation.
So based upon that, the decisions like, are you really putting your best foot forward? Because most people in this situation are going to focus on their negatives and not on their positives. But when you go for an interview, you focus on your positives, not your negatives. So there's this whole what I call dance that people do. And I try to get my clients not to do the dance.
Pete Wright:
That I imagine coming at this if I just kind of try to put myself in those shoes, coming at this from the perspective of I'm already under a stressful situation going through the divorce process, the odds are I'm going to amplify the worst in myself just naturally. Am I not even intend to do it? I'm going to find imposter syndrome. I'm going to find all of the ways I can talk myself into a hole.
Seth Nelson:
Absolutely. And a lot of it is fear. I'm not going to get a job. I'm going to get a bunch of rejections. No one likes rejection.
Pete Wright:
I've heard so many stories in the media about how older people are not able to find satisfying work if they come back into the marketplace. I've painted this picture in my head of impossibility, and I have therefore undermined my ability to actually ask for what I deserve.
Seth Nelson:
Absolutely. And historically, when I've had clients who are out of the workforce and they get back in the workforce, I will tell you, Pete, far majority of the time, 90% even better are happy they did. It gives them a sense of self worth. It gives them a sense of, you told me I was a piece of all these years and I couldn't do anything. Right? I just got three promotions in two years.
Pete Wright:
Yeah. Look at me now.
Seth Nelson:
Exactly. And I've had clients that have gone into professions that they never thought was even out there because let's say they were trying to get back into a job they had before in an office setting. And the next thing you know, they're caregiver for a disabled child and their life is fulfilled.
That is an hourly wage, just like the office job was an hourly wage. Maybe it doesn't have benefits, maybe it does. And that's the other reason you want to start doing this early is because when you get divorced, you're not going to be on your former spouse's health insurance. And in our society, the majority of health insurance comes from an employer. I mean, there's things now in the government, Obamacare and the like that there's an exchange. Generally speaking though, that's where health insurance comes from. So your alimony might include a COBRA payment, which is out outrageously expensive.
Pete Wright:
Extraordinary.
Seth Nelson:
Or hey, in the marketplace it's going to cost you 500 bucks a month, which is $6,000 a year. But what I always tell my clients is, look, we get to go to court and say, judge, we don't need the health insurance because you got a job making X, but we need these other things in the alimony calculation.
Pete Wright:
And suddenly you gained some sort of affinity in the process.
Seth Nelson:
You get some credibility and yeah, it's judge, I went out there, I applied for all these jobs, when I got go, boom, boom, boom. And then it just makes that issue so much easier when you're out there working. And I am not saying this is easy. Let's be very clear, this is not an easy task to undertake and you got to juggle the kids and do we need daycare? And what about just getting yourself organized and out the door in the morning? So it also, as tough as that is, it does take away a big issue in litigation.
Pete Wright:
Last question. Is there ever any use of the vocational evaluation as a tool in the process? Like one party says, oh, we need to do a vocational evaluation on this person who is unemployed. And then you would say, okay, but then you have to do one too to make sure you're making enough. Do you ever do reciprocal evaluations? Is that a thing?
Seth Nelson:
Not really. Because typically one person's already working. Right? And they've had that job and it just heats up litigation. So I haven't really had a case that I can recall even heard of one where both parties were doing it. Now I've settled cases. And here's the other thing to do to save time, cost, money, expense, heartache, attorney's fees. You just ask the other side how much you think I can make. Oh, you can make 60. I'll impute 40. We won't have to go through a voc eval. I'll tell you right now, you can impute $40,000 to me.
Pete Wright:
Yeah, let's go ahead. Adjust the spreadsheets and we shall never speak of it again.
Seth Nelson:
That's right. That's right. So that's another way to do it. Now I'll look at my client and say, all of these calculations are acting like you're making 40Gs a year. Go get a job.
Pete Wright:
That makes at least 40Gs a year.
Seth Nelson:
And here's the other thing that people don't realize. Sometimes we back in negotiations to an alimony number and alimony is modifiable. And so is child support. And once I get that number by adjusting my client's hypothetical imputed income from a strategic point of view, I'd like my client's hypothetical number to be higher because then they're getting, I'm making up a number $5,000 a month in alimony. We've imputed them at $50,000 a year. They get a job at 40. The alimony doesn't change because they didn't hit that 50 threshold or go above it. So they have room for more disposable income, so to speak.
Pete Wright:
Okay. Well, thank you, Seth. I love these little episodes, which give me an opportunity to learn some new terms and frankly, learn what I need to be afraid of and what I don't. And I think this sounds actually pretty reasonable, and it's certainly something that I imagine most of the people listening to this show likely won't have to face.
Seth Nelson:
That would be my hope. It is a narrow segment of what I do.
Pete Wright:
All right. Well, I sure appreciate it, Seth. This is why you know Seth Nelson, you are America's favorite divorce attorney. On behalf of that guy, Mr. Handsome, over there, I'm Pete Wright. Thanks everybody for listening. We appreciate your time and attention. We'll see you next week right here on How to Split a Toaster, a Divorce Podcast about saving your relationships.
Speaker 3:
Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How To Split A Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
