Effective Use of a Vocational Expert
By: Robert J. Durst
A litigant’s work history, confirmation of their career, their need for further education or training and their ability or inability to be "rehabilitated" (Although the use of the term rehabilitate or rehabilitative alimony has become common placed in determining whether a person who has never had a career outside the home and/or has experienced an extended absence from outside employment can be "rehabilitated". However, Webster’s definition of rehabilitate is "to restore to a former capacity". It could be suggested that the use of the term "rehabilitate" or "rehabilitative" is, in and of itself, a misnomer and misconception. In many instances, the person has never had a career and there is, therefore, no preceding capacity or status to "rehabilitate"). A person’s forbearance of earning capacity or career is now relevant to not only rehabilitative alimony but permanent alimony and equitable distribution.
With regard to equitable distribution, Public Law, 1997, Chapter 407 now provides that in making equitable distribution of property, the Court shall consider:
"the extent to which a party deferred achieving their career goals."
With regard to both permanent and rehabilitative alimony, N.J.S.A. 2A:34 23.1 provides that in making an award of permanent or rehabilitative alimony, the Court shall consider, among other factors:
With regard to permanent alimony a Trial Court in Finelli v. Finelli, 263 N.J. Super. 403 (Ch. Div. 1992) observed that although the Wife was entitled to permanent alimony:
In citing Finelli, the Appellate Division held in Hinel v. Hinel, 283 N.J. Super. 337 (App. Div. 1996) that:
Thus, although our statutes specifically reference the interruption and/or recommencement of careers and career goals relevant to permanent alimony, rehabilitative alimony and equitable distribution, it would appear from our reported cases, that trial practitioners are falling short of producing elements of proof necessary for the Courts to appropriately consider these factors in the cases of alimony, much less the newly enacted statute referencing equitable distribution.
The purpose of this paper is to discuss how a practitioner may effectively use a vocational expert to carry either an affirmative burden of proof to show that a client has a specific and measurable rehabilitative plan thus justifying enhanced alimony and/or rehabilitative alimony and/or that a party has deferred their career goals to an extent that should be taken into account in making an equitable distribution award.
Conversely, a vocational expert can be used by the party opposing such claims to show that a person is not in need of rehabilitative alimony, can be employed notwithstanding their claims of needed rehabilitative alimony and/or that a more expedient rehabilitative plan can be implemented.
A litigant’s work history, confirmation of their career, their need for further education or training and their ability or inability to be "rehabilitated" (Although the use of the term rehabilitate or rehabilitative alimony has become common placed in determining whether a person who has never had a career outside the home and/or has experienced an extended absence from outside employment can be "rehabilitated". However, Webster’s definition of rehabilitate is "to restore to a former capacity". It could be suggested that the use of the term "rehabilitate" or "rehabilitative" is, in and of itself, a misnomer and misconception. In many instances, the person has never had a career and there is, therefore, no preceding capacity or status to "rehabilitate"). A person’s forbearance of earning capacity or career is now relevant to not only rehabilitative alimony but permanent alimony and equitable distribution.
With regard to equitable distribution, Public Law, 1997, Chapter 407 now provides that in making equitable distribution of property, the Court shall consider:
"the extent to which a party deferred achieving their career goals."
With regard to both permanent and rehabilitative alimony, N.J.S.A. 2A:34 23.1 provides that in making an award of permanent or rehabilitative alimony, the Court shall consider, among other factors:
"...interruption of personal careers or educational opportunities."
With regard to permanent alimony a Trial Court in Finelli v. Finelli, 263 N.J. Super. 403 (Ch. Div. 1992) observed that although the Wife was entitled to permanent alimony:
"she failed to present evidence which would support the award of alimony and offered only ‘ casual reference’ to her intention to return to school and obtain employment without specifying any facts upon which the Court could base a determination concerning her rehabilitation."
In citing Finelli, the Appellate Division held in Hinel v. Hinel, 283 N.J. Super. 337 (App. Div. 1996) that:
"At no time during the full hearing on the merit did anyone supply facts on which this Court could base a determination concerning rehabilitative alimony."
Thus, although our statutes specifically reference the interruption and/or recommencement of careers and career goals relevant to permanent alimony, rehabilitative alimony and equitable distribution, it would appear from our reported cases, that trial practitioners are falling short of producing elements of proof necessary for the Courts to appropriately consider these factors in the cases of alimony, much less the newly enacted statute referencing equitable distribution.
The purpose of this paper is to discuss how a practitioner may effectively use a vocational expert to carry either an affirmative burden of proof to show that a client has a specific and measurable rehabilitative plan thus justifying enhanced alimony and/or rehabilitative alimony and/or that a party has deferred their career goals to an extent that should be taken into account in making an equitable distribution award.
Conversely, a vocational expert can be used by the party opposing such claims to show that a person is not in need of rehabilitative alimony, can be employed notwithstanding their claims of needed rehabilitative alimony and/or that a more expedient rehabilitative plan can be implemented.
