In my May 2, 2009 imputation blog, I addressed the LaBass & Munsie and Mosley cases and the 2-pronged test that exists for imputation of earning capacity/income: 1) Ability to earn and 2) Opportunity to earn.
Competent evidence needs to be presented to the Court to satisfy both prongs in order to prevail on an imputation of earning capacity issue.
Discovery can be used to obtain evidence primarily on the Ability to earn prong, and if creatively done, to obtain evidence on the Opportunity to earn prong as well, comprising Inspection Demands [Demands to Produce Documents for Inspection and Copying], Special Interrogatories and/or Requests for Admission, and a follow-up Deposition where appropriate.
If you have propounded over 35 Special Interrogatories 0r 35 Requests for Admission of truth of facts in the past, or if your Special Interrogatories or Requests will take the total number of Special Interrogatories or Requests over 35, you need to justify the reasons why you need to propound interrogatories or Requests over the 35 point, pursuant to the specific requirements set forth in Code of Civil Procedure Section 2030.050 and 2033.050, whereas there is no such limit or requirement on Inspection Demands.
A competent and aggressive divorce lawyer could prepare appropriate discovery to ferret out such things as resumes, job applications, unemployment applications and benefits, claimed conditions affecting ability to work, distance or salary or limitations of job searches, education, training, experience, employment qualifications, fields that the person is qualified to work in, jobs the person is qualified to work in, skills to offer prospective employers, prior employment criteria, acceptable and unacceptable fields of employment and/or jobs, prior employment history, efforts to enhance employability, efforts to secure employment and responses to such efforts, job offers and rejections, as well as inquiring as to jobs available within a certain geographic area for which that person is qualified and salaries offered for those jobs, requiring the person to make a diligent inquiry to other people and entities pursuant to Code of Civil Procedure Section 2030.220(c).
In addition, a creative Family Law Attorney could propound a set of 35 Requests for Admission of truth of facts designed either to produce admissions usable in a Declaration to prove issues, or to obtain responses other than unqualified admissions, along with a set of General Form Interrogatories, including the valuable Form Interrogatory 17.1 [which requires the responding party to provide all facts and identify all witnesses and documents who/which support that party's responses to requests for admissions other than unqualified admissions], to prepare the Attorney to perform follow-up discovery, whether to depose the party or to subpoena documents or 3rd parties to testify at deposition.
The unemployed party can be examined by a Vocational Training Consultant pursuant to Family Code Section 4331, either by stipulation or by an Order granted on a Motion to require the party to submit to such an examination.
The Vocational Training Consultant will typically produce a report addressing the party's ability to work (i.e., skills, education, training, and work history, etc.) as well the party's opportunity work, via jobs which the Consultant has located through a survey of the available job market, and the Consultant may prepare a Declaration to be used in connection with the support (or support modification) hearing and/or testify at that hearing.
On a shoestring, as done in the LaBass & Munsie case, classified ads may be submitted to the Court (appropriately authenticated) to show that "offers to bargain exist", in an effort to satisfy the Opportunity to work prong of the test.
As a Los Angeles family law attorney with substantial experience dealing with imputation of income / earning capacity cases, I designed this blog to give my readers insight into how a competent Divorce Attorney can obtain evidence to satisfy both prongs of the impution of earning capacity test.
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