You have made that decision to file for a divorce and now you’re faced with a range of additional decisions. Some of these are extremely critical. The first and most critical decision is finding and securing a competent lawyer, someone who understands you and your situation. The second is deciding what experts you might need, including whether or not to retain a vocational expert (VE). A VE can be particularly useful in spousal support cases when a litigant is faced with a spouse who is seeking support but is either voluntarily underemployed or unemployed. The VE can evaluate the employeability of the opposing spouse and, among other things, render an opinion that the spouse could earn more. A VE’s informed opinion can be used to support a finding that a party should be “imputed” with a certain level of income—thus reducing or eliminating the payor spouse’s exposure for spousal support,.

Although your attorney will guide you in making the decision of whether a VE is helpful for your case, it’s important to get the right VE. The right VE will help document important issues in your proceeding and can explain the technical points of your case to the court so that the decision-maker will have all the information necessary to make a fair and just decision. Search with your eyes open because not all VEs are alike. Also, VE services are fairly pricey. Generally speaking, fees in the mid-Atlantic area generally are billed on an hourly basis (i.e., at a 10th of an hour for work activity on your case). The hourly rates generally range from between $150 an hour to over $400 an hour. Some experts charge time differently too.  For example some VEs charge one rate for assessment, evaluation and a higher rate to appear at a hearing or in court to present testimony. Give careful consideration to the financial arrangements proposed by VEs before making your decision.  Also be alert and seek to select a VE who has much practice experience, someone who is a contributor to the field and one who has the appropriate background (i.e., holds professional licenses and certifications recognized by appropriate certifying boards and state licensing agencies).

In 2006, I wrote an article for the Virginia Bar Association titled, Imputing Income and Spousal Support Cases: the Best Vocational Experts are Dot Connectors (Sinsabaugh 2006).  This article explains how the VE will document and connect the dots on three critical case issues: (1) earning capacity, (2) job search, and, (3) other significant issues having a bearing upon the case. In that article I wrote, “Most people learn dot connecting as children from the ubiquitous coloring books that contain “connect-the-dot” pictures. Applied to divorce and spousal support cases, each dot represents some data point or fact of the case. If these dots are well-connected, the dots will give way to a finished picture.” VE’s do not create data, but they do connect the data and facts to case circumstances giving a complete picture of the selected parts of the case for the trier-of-fact. Good VE’s, are good dot connectors.

Good VE’s also use standardized criteria and tools found in the literature. Some examples include but are not limited to the Deutsch/Sawyer criteria, the Bridges criteria and the Kerner criteria. In addition, a good VE will also be able to describe for you the importance of certain case standards, especially as they apply to a particular state. In Virginia, one such standard is meeting the Niemiec test.  Remember, you are seeking to engage an expert that will demonstrate, explain, and properly present a well-developed systematic approach. That VE will use methods protocols and methodologies found in the practice literature and journals. The VE should be able to explain exactly how the analysis will be approached and whether the method was peer-reviewed and/or that it is widely used accepted by the rehabilitation, counseling or professional community. More about the process of occupational analysis can be found in the book titled, Occupational Analysis, Job Development and Placement Considerations for Rehabilitation Counselor by Martin, Sinsabaugh, Jarrell & Hardy (2007, 1999).   As in good research, the VE should speak clearly to the issue of background, especially that which is specific to your issues. The VE should also disclose any potential conflicts of interests; describe the methodology applied; and, cite the sources used to support the vocational opinion(s).  This is how the VE connect the dots into meaningful data points for the trier-of-fact. Essentially by engaging a vocational expert you are seeking someone who will present the facts, connect the dots and provide a well-reasoned written report.

As mentioned, in spousal support cases your attorney will use the VE’s report as a foundation for defending against or pursuing the imputation of income.  It is the VE’s report that will serve as a roadmap for vocational testimony in the case. Your vocational expert will provide the trier-of-fact with information necessary to justify a decision about the implication of income. Therefore, it is critical to find a VE who has an appropriate educational background and a breadth and depth of work experience related to providing expert testimony. Select a VE who has made a contribution to the field by writing professional articles or presenting to peers.  Some of the best VEs hold Diplomates or Fellows certification from the American Board of Vocational Experts.

When you engage a vocational expert, be prepared to supply information that it includes, but is not limited to income records, personnel documents, tax returns, work resumes, educational transcripts, documents that address employment skills, awards and certificates held. In some case be prepared to release specific medical records that are pertinent to the matter to be decided.

One of the most important questions that the court will want information about is, “Have you or your spouse engaged in a diligent and thorough job search process?” The VE will analyze the work finding attempts and then provide the court with a vocational opinion as to the diligence of the search or whether there has been a surrender of earning capacity. Evidence concerning the diligence of job search is an important factor to the trier-of-fact.

What things does a VE need to do the best job? A list of the attempts made to find and secure employment. This could be a handwritten list. It could also be as simple as making photocopies of job ads of the type of work being sought, the dates of attempted contact, and the results or employer responses received.  Be prepared to give your VE an accurate employment resume that addresses educational experience and jobs held. Finally, set time aside weekly to search for job opportunities and provide documentation of that search.

A good VE will give you objective criteria for an effective job search. Finally, a VE’s finding that the evaluee has surrendered earning capacity means that the evaluee has failed to look for work appropriately, sufficiently, timely and/or robustly for jobs that could be done given one’s age education and work experience. There are always exceptions, but in most cases not conducting an appropriate job search is tantamount to giving the trier-of-fact the justification to impute income.

Although there are no guarantees, however, generally speaking, selecting the right vocational expert will help your case, but a poor choice will definitely hurt. In summary, the VE is a special expert used to address employment related issues. Below is a checklist of things to look for in a good VE. Select at VE who:

• Holds at least a master’s degree in an academic filed directly or indirectly relate to vocational rehabilitation.
• Holds an appropriate professional license to practice and who holds a related board specialty certification.
• Holds certification from the American Board of Vocational Experts (abve.net )
• Has been recognized for making a contribution to the field by way of publishing and presenting professional topics related to employment, vocational or occupational analysis or earning capacity.
• Clearly explains fees charged and billing practices. Do not immediately select the lowest or the highest charging VE. Ask questions. Reputable VE’s will give you an engagement agreement that specifies the fee structure and billing practices.
• Will explain the vocational criteria and methodology to be used.

Once you select your VE, do be prepared to provide the following types of information:

• income records and tax returns
• personnel documents and work resumes, and skill awards and certificates
• educational transcripts, and
• medical records

Most importantly, select the VE with whom you feel comfortable talking. If you do not feel comfortable with the VE, ask your lawyer to help you select another.

Dr. Larry L. Sinsabaugh, Ph.D., is the managing director of Sinsabaugh Consulting Services, PC, a full service firm conducting vocational assessment, appraisal (testing), case management, counseling & treatment (clinical experience), coordinating & consulting, referral services, job placement and forensic presentations including vocational expert testimony. Dr. Sinsabaugh also provides employee assistance program (EAP), vocational rehabilitation, and human resource consulting. Dr. Sinsabaugh has been recognized by many courts as a vocational expert including but not limited to the Loudoun County Circuit Court.

References

Martin, E. D., Jr., Sinsabaugh, L. L., Jarrell, G. R., & Hardy, R. E. (2007). Job Development and Placement Strategies: Considerations for the Rehabilitation Counselor (Chap. 6, pp. 153-181). [A textbook for students in Rehabilitation Counseling and Rehabilitation Professionals]. In E. D. Martin, Jr. (Ed.). Principles and practices of case management in rehabilitation counseling.  Springfield, IL: Charles C. Thomas.

Martin, E. D. Jr., Sinsabaugh, L. L., Jarrell, G. R.  &  Hardy, R. E.  (1999). Occupational analysis, job development & placement.  In G. L. Gandy, E. Davis Martin, Jr., R. E. Hardy, & J. C. Cull, Counseling in the Rehabilitation Process: Community services for mental and physical disabilities (2nd ed.).  Springfield, IL: Charles C. Thomas. [Chapter 7, pp. 130-153. A textbook for students in Rehabilitation Counseling and Rehabilitation Professionals].

Sinsabaugh, L. L. (2006, spring/summer). Imputing income in spousal support cases: the best of vocational experts are dot connectors.  [Virginia Area Association Domestic Relations Council] VBA News Journal, XXXII(3), 10-15.