When awarding Permanent Spousal Support a court must consider the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living, taking into consideration all of the following
The supported party’s marketable skills, the job market for those skills, the time and expenses required for the supported party to acquire appropriate education and training to develop those skills, and the possible need for retraining or education to acquire other, more marketable skills or employment; and
The extent to which the supported party’s present or future earning capacity is impaired by any periods of unemployment during the marriage to devote time to domestic duties.
However, a court may impute income to a party only if he or she has a measurable earning capacity. This means the party has an ability to earn, taking into consideration his or her health, age, education, marketable skills, and employment history, and there are available employment opportunities. In California there is no requirement of proof that a party would be hired for any particular job. Evidence is also required regarding the amount of income that could be earned by the party; it is not sufficient to merely show how much the party earned from previous employment. When considering earning capacity a court must assume a reasonable work regime when imputing income to a party, even if that party worked excessive hours in prior employment.
Even if a party has a present earning capacity, it does not mean that a court will automatically impute income to the party for purposes of setting support. There may be legitimate reasons why the party is not working, such as the need to care for a dependent child, a party’s decision to get further education/training, or the party’s retirement. The court must determine earning capacity on a case-by-case basis.
Because of various rules and court cases regarding what the court is to consider as a party’s earning capacity, it is important to consult a knowledgeable family law attorney. Bethanie Fanti has dealt with these exact issues during her practice of family law and can assist you in your matter.