So, you are getting divorced. You spouse quits their job and files a motion for spousal support. They would rather collect the spousal support check instead of working. Are you just supposed to support your lazy spouse? Is there a way to fight this?
When one party asks the court to assign income to their spouse because of their spouse’s ability to earn, this is called “imputation if income.”
This is an all-too-common situation. Many people who are not represented by counsel walk into court with a mountain of craigslist postings, online job postings, and proof of income from their spouse’s former job. Their spouse’s attorney objects to each piece of evidence over and over. One by one the judge sustains the objections—meaning they are not considered as evidence. The reason is that those job listings are considered hearsay under the rules of evidence. So what is the law and what should you do?
In order to “impute” income to your spouse, you have to show they have both 1) the ability to earn and 2) the opportunity to earn. In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291. You don’t have to show any bad faith on their part—such as proving they are intentionally depressing their income. In re Marriage of Kochan (2011) 193 Cal.App.4th 420, 428.
In addition, job listings or online postings are inadmissible hearsay. Evidence Code § 1200 et seq. However, expert witnesses are allowed to rely on hearsay evidence when forming an expert opinion. Evidence Code § 801.
So, spouses attempting to impute income to their spouse usually have to resort to hiring an expert witness to testify regarding the ability and opportunity of their spouse to earn. This expert is usually referred to as an “expert vocational evaluator.” The problem is that this entire system increases the cost of litigation. Instead of showing the judge 50 craigslist ads, you have to spend $3,000 to hire an expert. Depending on you potential spousal support obligation, that may be money well spent. However, this system ensures that only family law litigants with adequate means are able to get justice.