How is alimony or child support determined if a spouse going through a divorce or modification of support is unemployed or underemployed? A judge may set support orders based on “earning capacity.”
Earning capacity has been defined the Connecticut Appellate Court as “an amount which a person can realistically be expected to earn considering such things as vocational skills, employability, age and health.” Therefore, a thorough analysis of the spouse’s education, work experience, earnings history, specific skills, and current economic conditions are required. Sometimes retaining an expert witness, such a vocational specialist, is worthwhile.
Two points:
1. A judge has the authority, but is not required, to establish or modify orders based on earning capacity. Judges are more likely impute an earning capacity of it appears that a spouse quit a job or is not making sincere efforts to obtain employment.
2. Earning capacity is not necessarily the highest amount of money a spouse once earned. When using earning capacity as means to calculate child support and alimony, judges will attempt to determine the amount a payor can currently earn. Clearly, past earnings are important in this determination but are not the sole factor.