When Peter and Polly were married twenty years ago, they each really felt optimistically when considering employability of the other. Peter was a graduate student and Polly was a secretary. Polly supported Peter while he obtained his Ph.D. in Economics, serving as the sole bread winner for the first four years of marriage. By the time their second child was born, Peter had received a full-time faculty position at a local university, and Polly stayed home with the children.

Now, Peter has filed for divorce. He recently quit his job over a disagreement with the Dean, and Peter claims that he will have no income for the foreseeable future, thereby owing no alimony to Polly. Peter also claims that his lack of income should be considered in dividing the marital property. Polly believes Peter’s assertions to be false—she believes that Peter will be able to find either another full-time faculty position or a position in the business sector which will potentially yield an even higher salary than Peter had as a professor. Polly wonders if the Massachusetts Probate and Family Court will consider Peter’s vocational skills and employability in awarding alimony and dividing property.

The short answer, of course, is yes. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process. The employability of the parties and the vocational skills of the parties are two of those factors; they are closely related in the Court’s analysis.

The term “employability” typically refers to the reasonable probability and prospect that a party will derive income from his or her vocational skills; it is a factor which attempts to measure the opportunities available to the party for utilizing his or her vocational skills in his or her field of work. Some additional, related factors which the Court may consider include the education of the parties, the parties’ vocational skills, age, and health.

Employability in most cases may be established by reviewing the party’s history of employment. Generally, employment history provides a reasonably clear picture of a party’s future prospects for employability. In some cases, however, the Court will look at other factors—for instance, in the case of a party who has stayed home to take care of children, the Court might recognize that employment opportunities may now be limited as a result of that decision. In other cases, where the Court finds that a party appears to be avoiding employment prospects, the Court may actually impute income to that party.

In one case, for example, the Court held that a husband’s potential income as a design engineer may be considered as the basis for alimony payments, rather than his actual income as a consultant. Schuler v. Schuler dealt with an alimony modification request by the husband, who had been bought out of his closely held corporation, of which he was the President at the time of divorce. The husband asked that the Court modify his alimony payment amounts, arguing that he was no longer working in the same position. The Court noted that the husband could apply for (and reasonably easily find) employment in his line of work, and attributed a salary which was reasonably available to the husband as his income. [1]

In another case, the Court heard the argument of a husband who voluntarily retired from his position as an attorney and petitioned for termination of his alimony payments. The Court held that voluntary retirement did not warrant a termination of alimony payments outright, but the payments might be modified downward.[2] “People often prefer careers that may not maximize their lifetime income, and divorce should not entirely deprive an individual of this freedom,” the Court noted. “But these considerations must be balanced against a provider’s obligation to support the former spouse.”[3]

If you have any questions about property division issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Schuler v. Schuler, 382 Mass. 366 (1981).

[2] Pierce v. Pierce, 455 Mass. 286 (2009).

[3] Id., at 287.