So you’re going through a divorce, and suddenly your ex-partner quits their job, which you suspect is in the hope of reducing or eliminating their income to avoid their likely financial obligations under the law, such as paying spousal maintenance or to increase their property settlement. Is there anything you can do? Yes. Read on for our tips on how you can fight back to get a fair outcome and prevent your ex-partner playing this game.
If an ex-spouse strategically decides during a divorce that they aren’t going to work anymore, this doesn’t necessarily mean they will be relieved of their obligations in terms of child support and spousal maintenance. If your ex-spouse makes a deliberate choice to quit employment during a divorce in order to generate an artificial need for support, they may be in for a rude awakening when they discover that the courts will not order their spouse to support their decision not to work.
Faced with paying child support and spousal maintenance, unscrupulous ex-partners have been known to make themselves unemployed or underemployed on purpose, but they are foolish if they believe they can hoodwink the legal system.
Spousal maintenance is determined by one spouse’s reasonable needs and the other spouse’s capacity to pay, which takes into account earning capacity (not just actual current income). So, courts will look at what your ex was earning right before they quit their last job and their efforts to obtain employment since. Making a deliberate, strategic decision to quit a job—as opposed to being made redundant or being terminated due to factors such as poor performance (which can of course also be deliberate)—does not magically reduce an individual’s earning capacity. What’s more, if your spouse did have a job when proceedings started, they’ve already established to the court that they have earning capacity. The courts would still expect your ex to look for another job.
What steps can you take?
Suppose you’ve received a lawyer’s advice that you are likely to be able to successfully claim spousal maintenance, but your spouse then tactically quits their job. The burden will be on you to prove to the court that your ex is voluntarily unemployed or underemployed. To make a case, you will need to do some detective work—but it’s not as hard as you may think.
- Documents to determine earning capacity
For example – tax returns, pay slips, employment contracts. Under family law, your spouse is required to disclose these to you anyway. But if they resist, you have the option of seeking a court order for full disclosure, or issuing a subpoena.
- Your ex’s employment records to determine why they left their job
These are really helpful and can provide the “slam dunk” evidence that you need to show that your ex left their last job strategically in order to avoid the financial obligations of the divorce. Employers often document employee exits very thoroughly to protect themselves, so your ex’s employment file may contain a wealth of information, from the reasons why your spouse became unemployed, whether it was voluntary or whether they were terminated due to poor performance, and whether the timing coincides with the divorce proceedings. The file may also contain interesting information about extra income/benefits/bonuses they received. Employment files can be subpoenaed too – ask your lawyer for advice.
- Your ex’s medical records to determine the truth of incapacity
Perhaps your ex is claiming they can no longer work for medical reasons. If you are concerned they are feigning illness and the inability to work, you can debunk this by requesting authorisation for the release of their medical records. If they refuse, your lawyer can head to court to seek other options.
- A vocational evaluation on your ex to determine earning capacity
If your ex-spouse voluntarily becomes unemployed during divorce, you or your lawyer can ask the courts to order them to undergo a vocational evaluation which creates evidence of their earning capacity. Vocational evaluations are tools frequently used in the HR industry but professional evaluators can also be engaged to provide expert opinions to the family courts, where expert opinions are heavily relied upon. What they do is investigate all the factors that are relevant to your ex-partner’s capacity to earn, such as their work experience, education level and age. They can also find job opportunities that would suit the spouse, going so far as to pursue real job leads and verifying with employers that your ex-spouse would be a good fit, and prepare an occupation report. This assists them to provide an opinion as to the ex’s earning potential, and can be hard for your ex to defend. You can also undertake this yourself, by Googling job opportunities that would suit your ex and salary ranges, so that you can show the court that there are jobs available for which your spouse could apply, and that your ex therefore has earning capacity.
Spousal maintenance in Australia is dealt with under the Family Law Act and is typically considered as part of an overall property settlement. Family law courts will look at the unique circumstances of each case to determine what is fair. Obtaining legal advice in relation to spousal maintenance is highly recommended, as you’ll need to be advised on your prospects for success, as well as the ultimate commercial worth of making an application. Your lawyer should also first try to negotiate to reach an agreement with your ex, so that ideally some interim payments can be arranged to immediately support you after separation. If you decide to go ahead and make an application, it’s also important that you and your lawyer properly prepare the application with all the necessary evidence, to give it its best chance of success.
You can read the Family Court’s factsheet on spousal maintenance here.
Do you need help preparing an application for spousal maintenance or with a property settlement? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.