When a couple is divorcing, issues may arise regarding the present earnings, past earnings, future earnings or potential earnings of one or both spouses. This happens most commonly when one party is seeking spousal maintenance (a/k/a alimony), and the other party believes the requesting party is under-employed. That term (under-employed) refers to (a) working less than full-time and/or (b) foregoing the opportunity for higher level earnings. In most cases, the dispute can be resolved by negotiating the issue in conjunction with other financial issues, such as retirement assets or house equity – oftentimes with a mediator.
But if the parties need a vocational expert to weigh in on the issue, most commonly it is because the spouse who would pay spousal maintenance would like to show how much higher the requesting spouse’s income could be. This spouse might be tempted to hire an expert to focus on the potential income and estimate as high as possible. That would require the requesting spouse to hire a competing expert to focus on the realities of the job market and the obstacles and limitations that stand in the way of maximum earnings. If the parties litigate the issue in family court, then the judge is presented with two extremes, neither of which is likely the fair answer to the question. Nor is it likely to be a fair result for the court to simply average the opinions of the two experts. Nor is the court in the best-informed position hearing from experts advocating for one “side” of the legal dispute.
If the parties agree to enlist a neutral vocational expert, they will likely share the cost of the expert’s work (which saves each party half of what they would likely spend on their own experts), and the work product will be a better way to provide the court with an informed record on which to make a decision. Moreover, the parties may avoid the need to let the court decide the issue altogether, if the parties are able to agree that the neutral expert’s opinion is a satisfactory middle ground.