Peter and Polly married twenty years ago. At that time, both felt optimistic about each other’s employability. Peter was a graduate student, and Polly was a secretary. Polly supported Peter during his Ph.D. in Economics, being the sole breadwinner for the first four years. By the time their second child was born, Peter had secured a full-time faculty position at a local university. Polly then stayed home to care for the children.
Now, Peter has filed for divorce. He recently quit his job after a disagreement with the Dean. Peter claims he will have no income for the foreseeable future, so he owes no alimony to Polly. Peter argues that the court should consider his lack of income when dividing the marital property. Polly believes Peter’s assertions are false. She thinks he can find a full-time faculty position or a business job, potentially offering a higher salary. Polly wonders if the Massachusetts Probate and Family Court will consider Peter’s vocational skills and employability when 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,” not necessarily equal. The court decides how to divide marital property fairly in each 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” refers to the likelihood that a party will earn income from their vocational skills. It measures opportunities for using these skills in their field. The Court may also consider factors such as education, vocational skills, age, and health.
You can establish employability by reviewing the party’s employment history in most cases. Generally, employment history provides a reasonably clear picture of a party’s future prospects for employability. In some cases, the Court considers other factors. For example, if a party stayed home to care for children, the Court may recognize limited employment opportunities. In other instances, if the Court believes a party is avoiding employment, it may impute income to them.
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.