I’m Getting Divorce and haven’t Worked in 15 Years. Do I have to look for job?
It depends. There are many variables at hand and your situation should be thoroughly discussed with a Denver divorce attorney. In any divorce situation, employment and income can tie into dealing with issues of maintenance (alimony), under C.R.S. 14-10-114, and child support, if there are children of the marriage.
Pursuant to both the alimony and child support statutes, there is a presumption that when either is an issue in a divorce, or any family law case, each party should be employed commensurate with his or her experience and skill set. However, in reality, life and circumstances can get in the way such that there are legitimate reasons that a party to a case is not working or will not be required to work.
Answering the specific question at hand, a court is going to assess the facts and circumstances of the specific marriage. After 15 years out of the work force, a court is going to first ascertain why. A court is also going to inquire as to what field or job the spouse held prior to leaving the work force. This will also include inquiry in terms of past salary. Likewise, education level will also be an issue which is looked at.
Generally, a court is going to understand that in most professions, 15 years out of the work force is a long time and that with some professions a person cannot just jump right back in. Rather, there may need to be retraining to get back into a specific field, such as IT or nursing. In some instances, there may be licensing issues also necessitating courses, testing, etc., such as in the real estate or teaching field. Each case is different and to just presume a person can instantaneously get back to where they were from an earning capacity standpoint is unrealistic.
Additionally, things like age and market demands can also have an impact. As we get older, it may be much more difficult to find work. Though certainly unstated for legal reasons, companies may be much less likely to hire someone at 46 years of age who has not worked for 15 years when there are people in their 20’s or 30’s ready to take a job at a lower rate of pay. Moreover, some industries that may have been viable 15 years ago may be on their way to becoming obsolete. Thus, competition for employment in that industry may be fierce, or it might not make sense to look for work in that dying field.
At the outset of a divorce or other Colorado family law case in which employment and income are at issue, the first step is to assess your situation with your attorney to determine what makes sense. At the same time, it is important to strategically look at the next steps. In any alimony or child support case, a court can attribute or “impute” income to a person based on their abilities. However, statute also authorizes a potential pass for people who are endeavoring to make a good faith career change. As such, going back to school, whether for a degree (or higher degree) or retraining may be viewed as a legitimate reason to not go back to work right away.
Other instances which might alleviate the duty to look for work or be employed to the best of your abilities might be caring for a young child or a child with special needs. However, absent special circumstances, the presumption will be that a person needs to be looking for work. Generally, we recommend that within a reasonable time of a case starting that our clients in this situation start looking for work in line with their skills and circumstances. They may find work or they may not. They may find work that isn’t their ideal or best job, but must be taken out of necessity. Certainly a job might be accepted while a person also continues to look for a better one. They key to proving employability is the ability to demonstrate job search efforts. As such, we advise our clients to actively look for a job and to document everything. Keep a log of jobs applied for, including date, employer, and salary range. Keep any and all inquiries and acceptance or rejection letters. If ultimately no job, or no great job, is found, at least it can be demonstrated to the court that you are trying. In turn, a court is much less likely to impute a higher income. The norm would be that a court will at least impute Colorado minimum wage, absent a disability.
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