A vocational expert reviewing a skills inventory with the person being evaluated

Vocational assessment in a Colorado divorce.

An expert’s opinion on what your spouse can earn. It is the evidence that turns a zero on a financial statement into potential income, shortens the term, and gives a step-down a timeline.

01What it is
02The rule it serves
03When it moves the number
04The five steps
05What the judge does with it
06When the expert is pointed at you
07Cost, timing, court orders
→See what it does to the number

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Maintenance runs on income. A vocational assessment is how the court learns what the income should be.

The financial statement on the other side of a maintenance case says what your spouse earns. In a surprising number of cases the number is zero, or a part-time salary, or the pay from a field they moved into after the separation. The worksheet takes that number as given. The statute does not: if a spouse is voluntarily unemployed or underemployed, maintenance is calculated on what they could earn. But a judge cannot guess what that is. Someone has to prove it.

That someone is a vocational expert. In thirty years of maintenance cases I have not found a piece of evidence that moves the number more reliably, and I have not found one that payors skip more often. This page is what the assessment is, when it works, how it is done, and how I use it, including the cases where the other side points one at you.

What the report looks like

The income on many recipients’ financial statements

The worksheet accepts it. The statute calculates on potential income when the court finds the spouse could be earning. The assessment is what lets the court make that finding.

$450

Off the guideline, per $1,000 assigned

Each $1,000 a month of potential income assigned to your spouse lowers the guideline amount by $450 a month, or $480 when combined income is $10,000 a month or less. Over a term, that is the case.

What a vocational assessment is.

A vocational assessment, called a vocational evaluation in court papers, is an expert’s opinion on what a person is able to earn. Not what they earned last year and not what they say they can find, but what someone with their education, licenses, work history, skills and health can be paid in the Denver labor market today, and how long it should take to get there. It is done by a vocational expert, usually a rehabilitation counselor who testifies in family cases, and it ends in a written report with an earning range, the jobs it rests on, and a timeline.

The report is evidence. It is exchanged in discovery, the expert can be deposed, and the expert testifies at the hearing. Its job is to give the court something better than argument when the question is whether the spouse asking for maintenance can support themselves through appropriate employment, which is one of the two findings the court has to make before it can award anything (C.R.S. § 14-10-114(3)(a)(I)).

It is not a psychological evaluation, not a custody evaluation, and not a forensic accounting. Those answer different questions. The vocational expert answers one: what can this person earn, and by when.

What the report contains

Four things, in every credible one.

A work history and skills inventory drawn from records and an interview
Test results where they help: aptitude, interests, transferable skills
A labor market survey: actual openings, what they pay, what they require
An opinion on earning capacity, with a range and a timeline to reach it

What it is not

The questions it does not answer.

Whether your spouse needs maintenance at all: that is need, proven separately
Whether they will actually take the job: the statute asks what they could earn
What your own income is: that is a different fight, on a different page
A guarantee of any number: the court weighs it like any other evidence

Potential income, not reported income.

A vocational expert presenting earning capacity findings to a conference room

C.R.S. § 14-10-114(8)(c)(IV)

If they could be earning, the court can count it.

The maintenance statute (C.R.S. § 14-10-114(8)(c)(IV)) says that if a party is voluntarily unemployed or underemployed, maintenance is calculated on a determination of potential income. The child support statute (§ 14-10-115(5)(b)) has the same rule, so one evaluation serves both. The exceptions are narrow: no potential income for a spouse who is physically or mentally incapacitated, who is caring for the parties’ child under thirty months, or who is incarcerated for a year or more. And a spouse is not underemployed if the job is temporary and reasonably expected to lead to higher income, is a good-faith career choice, or is part of a good-faith educational program that will raise their income (C.R.S. § 14-10-114(8)(c)(V)).

What the finding needs

Evidence that the unemployment or underemployment is voluntary, not a medical or market fact
Evidence of what the spouse can do, and what that pays where they live
Findings the court actually makes, on the record, so the award survives an appeal

Colorado courts do impute income. Four support decisions where the Court of Appeals upheld a finding of voluntary unemployment or underemployment and a calculation on potential income. In each one, the finding held because the record showed what the person could do and what it paid.

The inactive license

A lawyer picking apples.

An attorney put his license on inactive status and worked seasonally at an orchard. Income was imputed at his capacity as a mechanic, and the finding was upheld.

In re Marriage of Elmer, 936 P.2d 617 (Colo. App. 1997)

The career change

A lawyer turned rancher.

A lawyer who lost his firm job took up cattle ranching that earned nothing. Income was imputed at his prior legal earnings.

In re Marriage of Bregar, 952 P.2d 783 (Colo. App. 1997)

Part time by choice

A teacher who would not go full time.

A mother with bachelor’s and master’s degrees substitute-taught part time while a full-time certificate was within reach. Income was imputed at a full-time teacher’s pay.

In re Marriage of Zisch, 967 P.2d 199 (Colo. App. 1998)

The job not taken

An executive who would not travel.

An executive declined positions that required travel and had not pursued consulting. Income was imputed at his prior earnings.

In re Marriage of Yates, 148 P.3d 304 (Colo. App. 2006)

When it moves the number, and when it will not.

When it helps

The cases where it changes the case.

A degree, license or trade your spouse is not using
Out of the workforce for years, but the children are in school
Part-time by choice, when full time is available
A switch to a lower-paying field during the separation
A claim they cannot work, with no medical evidence behind it
Hours cut, or a job quit, after the case was filed
A temporary order set on an income of zero
A modification where the question is what your ex could earn now

When it will not

The limits the statute and the facts set.

A documented physical or mental incapacity
Caring for the parties’ child under thirty months
A good-faith career change, a temporary job on the way to a better one, or a genuine degree program
A spouse already earning close to what the market pays
A combined income far above $240,000, where the formula does not apply and the number is only one factor
An evaluation started too late to survive cross-examination

A résumé, an application confirmation and a vocational assessment report on a desk

The judgment call is whether the gap between what your spouse earns and what they could earn is worth what the evaluation costs and the fight it starts. A spouse earning $60,000 who could earn $70,000 is not the case. A spouse at zero who holds a nursing license is. I make that call at the first meeting, from the résumé, the degrees and what you know about the job search.

The five steps.

From retention to testimony. The whole thing takes weeks, which is why the first step is the date it starts.

A vocational expert going through a skills inventory with the person being evaluated

Records and interview

Résumé, degrees, licenses, work history, medical records if health is claimed, then a meeting with your spouse about why they are not working, or not working more.

A hands-on aptitude test at a workbench, timed by an evaluator

Testing

Aptitude, interest and transferable-skills testing where it helps: what the person can do, not only what they have done. Not every case needs it.

An analyst reviewing labor market data on two monitors

Labor market survey

Real openings in the Denver metro, what they pay, what they require, and whether employers are hiring. The part a stale report gets wrong.

Report

A written opinion: an earning range, the jobs it rests on, and how long it should take to get there. Exchanged in discovery; the expert can be deposed.

Testimony

At temporary orders, permanent orders or a modification hearing. Expect the other side to answer with its own expert, and plan the cross before the report is written.

A lawyer and her client at counsel table, the case file open between them

In the courtroom

What the judge does with it.

The court weighs the opinion like any other evidence; it does not have to adopt the number. What it cannot do is find potential income without evidence of what the spouse could earn, and what it must do is make findings on the statutory factors for both the amount and the term (C.R.S. § 14-10-114(3)(e)). An award without them can be reversed (In re Marriage of Wright, 2020 COA 11). The assessment gives the court the findings to make, which is the same thing as giving you an award that holds.

Where it lands

The income that goes into the formula on your spouse’s side, which lowers the amount
The term, shortened to match the expert’s timeline for re-entry
A step-down: more in the first year while they return to work, then less
Temporary orders, where the first number tends to stick
A benchmark for a later modification, measured against what the expert said

The arithmetic · inside the guideline

What $3,000 of potential income does.

Your income $14,000 a month; your spouse’s reported income $0; twelve-year marriage.

Guideline on reported income of $0	$4,200 / mo
Guideline if the court finds $3,000 of potential income	$2,850 / mo
Difference each month	$1,350
Guideline term, 12-year marriage	71 months
Difference over the term	$95,850

Before the step-down, and before the term itself is argued. The calculator runs your numbers.

The step-down

A plan, not a plea.

Judges do not like being asked for nothing. They do like a timeline.

The same testimony that supports potential income supports a step-down: a higher number for the months the expert says re-entry takes, then a lower one once your spouse should be self-supporting, then an end. It is more persuasive than asking the court to impute full earnings from day one, and it gives the order an internal logic that survives a later motion to modify. I model the step-down against the expert’s timeline before the hearing, so the judge is choosing between two plans instead of between a number and an objection.

When the expert is pointed at you.

The potential-income rule applies to the payor too. If your income dropped before or during the case, expect a vocational evaluation of you. And when the other side brings an expert, the report is only as good as its weakest assumption.

A manager with a tablet on a warehouse floor

Defending your own income

Your income counts too.

A payor who quits, takes a pay cut, cuts back to three days, or leaves earnings inside a company he controls invites the same finding. The answer is not to argue. It is a record: the termination letter, the market for your job, the applications, the offers, the medical evidence if there is any, and a normalized income history that shows the best year was the best year. If the numbers are large, your own expert answers theirs.

What I do

Document why the change was involuntary before the other side asks
Keep the job search in writing: applications, recruiters, rejections, dates
Normalize the income history so a peak year is not treated as capacity

A deposition in progress, exhibits on the table

Cross-examining their expert

Where a vocational report breaks.

A report that says your spouse can earn nothing is as vulnerable as one that says they can earn a fortune. Most weak reports fail in the same places: no labor market survey, or one built on postings that are not real openings; no testing when testing would have hurt; an interview that took the subject’s account of their own health at face value; a lapsed license treated as a permanent bar; and a timeline that runs to the hearing date instead of the market.

The questions

Which of these jobs is open today, and what did the employer say it pays?
What records did you review, and what did you not ask for?
What would it take to reactivate the license, and how long?
What did you assume about health, and what is the medical evidence for it?
When were you retained, and how many hours did you spend?

A judge cannot guess what your spouse could earn. The evaluation is how the court finds out.

If the income on their financial statement is zero, talk to me before the temporary orders hearing →

Cost, timing and court orders.

Six things I tell every client before we retain an expert. The first one is the one that decides the rest.

A video consultation on a desktop screen

Retain early.
The expert needs weeks: records, an interview, testing, a market survey, a report. Retained before the temporary orders hearing, the assessment sets the first number. Retained after, it is arguing against a number the judge has already seen you pay.
The court can order it.
If your spouse will not sit for an interview, I ask the court to order the evaluation, and I ask early. A refusal to cooperate is itself something the court notices.
Who pays.
The party who retains the expert pays the expert, and the court can allocate expert costs between the parties in the case. Measured against a maintenance award over its term, it is usually the best money spent.
Both sides see it.
The report is disclosed, the expert can be deposed, and the other side will answer with its own expert if the number is worth it. A report written to be read by a hostile expert is a better report.
It cuts both ways.
If your income fell, expect an evaluation of you. Build the record that answers it before the question is asked.
It is evidence, not a verdict.
The court weighs it. What the assessment does is let the judge make the finding the statute requires, with the record to support it. That is what wins, and what holds.

Three assessments that changed a case · The assessment at a modification · The same rule in child support

Three assessments that changed a case.

Illustrations, not case results. Every case turns on its own facts.

The nursing license. A spouse who left nursing twelve years ago to raise the children claimed maintenance on an income of zero. The evaluation showed the license could be reactivated in months and the Denver market pays in the nineties. The case became potential income and a step-down, not a decade of full support.

The part-time paralegal. A spouse with a paralegal certificate worked twenty hours a week at a small firm and testified that full time was not available. The labor market survey listed a dozen full-time openings within twenty miles and what they paid. The court found underemployment and set maintenance on full-time earnings.

The surgeon’s schedule. On the other side of the table: a payor who cut back to three days a week at 62 faced an evaluation of his own capacity. The record we built was medical, the practice’s call schedule, and a vocational opinion on what a surgeon his age can sustain. The order stepped down with the schedule instead of holding him to the peak year.

The assessment at a modification.

An existing order can be modified on a substantial and continuing change of circumstances (C.R.S. § 14-10-122(1)(a)), and one of the most common is that the recipient could be earning and is not. The same potential-income rule applies at a modification as at the decree, and the same evidence proves it. If the original order rested on an expert’s timeline for re-entry and the timeline has passed, the report is the benchmark the motion is measured against. The procedure is on modify or end spousal maintenance.

The same rule in child support.

The child support statute calculates support on potential income for a parent who is voluntarily unemployed or underemployed, with its own exceptions for incapacity, a child under twenty-four months, incarceration of 180 days or more, and good-faith education or career choices (C.R.S. § 14-10-115(5)(b)). One evaluation serves both calculations, and because maintenance is figured first and then flows into the child support worksheet, a finding of potential income moves both numbers at once.

What payors ask about the expert.

What is a vocational assessment in a divorce?

An expert’s written opinion on what a spouse is able to earn: the jobs a person with their education, licenses, work history and health can get in the local labor market, what those jobs pay, and how long it should take to get one. It is done by a vocational expert, usually a rehabilitation counselor who testifies in family cases, and it is the evidence a Colorado court needs before it can calculate maintenance on potential income instead of the income on a financial statement.

What is imputed income in Colorado?

Income a court assigns to a spouse who is voluntarily unemployed or underemployed, based on what they could earn. The maintenance statute calls it potential income. When the court makes that finding, maintenance is calculated on the potential income, not the reported income. The child support statute has the same rule. The finding has to rest on evidence of what the person can do and what it pays, which is what the assessment supplies.

Can my spouse be forced to undergo a vocational evaluation?

The court can order it, and I ask early. The evaluation is an interview, testing and a review of records; the expert also surveys the labor market independently. If your spouse refuses to cooperate, the expert can still write a report from the records and the market data, and the refusal itself tends to be noticed.

How much can a vocational assessment reduce maintenance?

Every $1,000 of monthly income the court assigns to your spouse lowers the guideline amount by $450 a month, and by $480 when combined income is $10,000 a month or less. Over a 71-month guideline term, $2,000 a month of potential income is about $64,000. The assessment can also shorten the term or support a step-down that tracks the expert’s timeline. The number on the calculator page shows the arithmetic.

Does it work if my spouse has been home with the children for years?

Often. Time out of the workforce is what the assessment measures, not a bar to it. The expert looks at the degree, the lapsed license, the transferable skills and the current market, and gives a timeline for re-entry. The statute makes an exception for a spouse caring for the parties’ child under thirty months. School-age children do not prevent a finding of potential income.

Can the other side get a vocational assessment of me?

Yes, and if your income dropped before or during the case, expect it. The potential-income rule applies to the payor too. The answer is a documented record: why the loss was involuntary, the job search, the medical evidence if there is any, and your own expert if the numbers are large.

How long does a vocational assessment take?

Weeks, not days. The expert needs the records, an interview, sometimes testing, and time to survey real openings and what they pay. A report finished the week before the hearing is easy to attack. I retain the expert before the temporary orders hearing when I can.

Who pays for the vocational expert?

The party who retains the expert pays, and the court can allocate expert costs between the parties as part of the case. Against what a maintenance award costs over its term, the evaluation is usually the best money spent in the case.

Does the judge have to follow the expert?

No. The court weighs the opinion like any other evidence, and the other side can bring its own expert. What the judge cannot do is find potential income without evidence of what the spouse could earn. The assessment is that evidence, and the findings it supports are what survive an appeal.

Keep reading

Where to go next.

The next page in this chapter, the pages that belong with it, and the blog posts on the same question.

Next chapter · Chapter II · The Children

Parental ResponsibilitiesBest interests, decided on credibilityRead it next →

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If the income on their financial statement is zero, talk to me before the temporary orders hearing.

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