Q. My husband got laid off during the pandemic and still hasn’t gone back to work. Unemployment ended long ago and I’ve been supporting the family on my income, supplementing expenses with credit cards. My lawyer said I can prove my husband has an earning capacity but that I need to hire an expert to convince the judge to attribute income to him. I can’t believe I need to spend money on hiring someone to prove that my husband can work. Why can’t the judge just say he can earn what he did before the pandemic? Do I have any other options?
A. Your lawyer is not wrong if there is a trial on the horizon. The judge needs information on which to base his/her decision. If the only information you have comes from tax returns, for example, showing what your husband used to earn, he might take the stand and make up all kinds of stories about why he cannot go back to work in that capacity and he might convince the judge. Hiring an expert gives the judge information that cannot be gleaned from the testimony of you or your husband. It is independent information that, in many circumstances, is deemed more reliable than testimony of the parties who have a proverbial horse in the race.
There are two kinds of experts for this situation. A vocational expert will report to the judge on all kinds of labor bureau statistics in the field in which your husband previously worked or in any other related fields where he is qualified to work. This expert will generally write up a report and testify at trial at a cost of several thousand dollars. And, while a judge can attribute an income based on this type of information, the problem is this expert will not have found actual potential employers for your husband whom he could submit his resume to and try to become employed by. Often times this leaves a judge skeptical.
The other type of expert is a head hunter in the field in which your husband formerly worked. There are placement firms that specialize in certain industries. Find one that regularly places people in the field where your husband has experience. They will know who is hiring and, based on your husband’s resume, where they could likely get him an interview. If you have someone who can get on the stand and tell the judge they have a certain number of employers who would interview him and testify to a salary range based on his qualifications, that is more tangible information for the judge to get behind. Further, in my experience, this expert will not write a report thus significantly reducing the cost.
Of course, if you do not yet have a trial on the horizon, your best bet is a motion to order him to get a job. You don’t have to pay an expert if he has a job.
