In a Rhode Island Divorce it is possible for a judge to set an earning capacity for you following a hearing. It is also possible for you to agree to an earning capacity when you are in a divorce and just want to get the divorce completed.
An earning capacity is an artificial income that is assigned to you for child support, alimony or other financial purposes in a divorce either by a judge or by agreement.
Should John Agree to Setting his Earning Capacity?
For example, John is a sheet metal specialty engineer and is going through a divorce with his wife Miriam. They have 4 children. John was let go from his job of 26 years when the Rhode Island company downsized 1 year ago. John made a good income after 26 years as a specialist with the same company and he made a good six figure income ($125,000/yr) and his family lived fairly well. Despite a diligent search for work John found that there aren't any positions in the New England area looking for a person with his experience. John's work was actually specifically suited to the work for the company that had let him go and his experience didn't transfer easily to any company.
John simply could not find a job and unemployment was going to run out soon. Miriam expected the same sort of support for her and the kids that John had been providing for years. John simply couldn't do it. He was as agreeable as possible while on unemployment but now that unemployment was coming to an end John was forced to take the best job he could find at only $54,000 a year in order to make sure there was still money coming in.
Miriam and her lawyer were not satisfied with the amount of child support John would end up paying at an income of $54,000 per year so they asked John to agree that he accept an assigned earning capacity of $85,000 per year or they would petition the court that the amount be $100,000 or more.
John was scared. He didn't know what to do. He felt he should be making $85,000 with his skills but the jobs weren't there and he took the best job he could. Even though Miriam and her divorce lawyer thought it was fair to ask for much less than the income he had been making before, John would have nothing left to live on after he paid for child support and child care for the children as well as the medical insurance costs he would have to pay out of pocket. Yet John was scared about what might happen if the Court decided that he had the capacity to make $100,000 or even $125,000. He knew he wouldn't survive at all and he'd be living on the street because he wouldn't be able to even afford gas for his truck.
What should John do?
Each person has to make their own choices in their own Rhode Island divorce but they should consider the advice of a competent lawyer who regularly practices Rhode Island divorce and family law. Whatever decision John should make in his divorce predictament, he should do it with an informed mind and consider not just the immediate moment but the future as well.
My philosophy has always been that unless there is extremely strong facts and reasoning for agreeing to an earning capacity when you are not making anywhere close to the amount of money someone else wants to assign to you, then you should oppose it.
Now, what is the reasoning behind my philosophy? It's fairly simple. If you previously made $125,000 but now you are making $54,000, in almost every instance you most likely wouldn't want to agree that your earning capacity is $85,000 in a divorce or in any family law proceeding in Rhode Island for that matter.
Why? Think of it this way. Once you agree with people that you are capable of making $85,000 then you have set the floor (the "lowest amount you should make") for what you are capable of earning. Therefore,unless you become severely injured or debilitated then the other party is almost always going to take the position that your income should always be based "at a minimum" on $85,000 because you agreed to it.
Now, since typically as you get older you gain more experience and more experience should mean greater income then your agreement to $85,000 as the lowest amount you should ever make should be upheld. Therefore, if you agree that your earning capacity (what you are capable of earning) is $85,000 then you may never be able to argue that you make less than $85,000 for any purpose because you have now admitted that you are capable of earning $85,000.
Imagine that John does agree that he is capable of making $85,000 early in his divorce even if he is only making $54,000. Reasonably, John's child support, child care and perhaps alimony payments are very likely to be based on $85,000 or higher even if John only makes $54,000. That's a huge difference.
So what happens? John overpays because he wanted to be agreeable in his Rhode Island divorce and loves his children, yet John later realizes he simply can't survive. If John agreed that the $85,000 during his divorce, John should be prepared that he may never be able to argue that his income is less than $85,000 even when it actually is.
Agreeing to an earning capacity is generally speaking a bad idea in Rhode Island divorce and family law cases for the reason I mentioned above. Once you agree to that assigned amount, you can't just take back your agreement if it doesn't work out in the future. If $85,000 ends up in a court order then you just set the lowest amount you should expect to make in the eyes of many judges, attorneys, and parties.
Is it a risk to go to court and take the chance that the judge might find it to be higher? Yes, it is. Yet the other party has to justify why you should be assigned more than the $54,000 you make. If you demonstrate your unsuccessful yet diligent job search and the specialty area that you were involved in then any good judge is likely to see what you can and cannot do.
Give careful consideration before you agree that an earning capacity can be set for you in a RI divorce. If this comes up in an uncontested Rhode Island divorce, think twice because frankly... it shouldn't!
My Best to All in Your Rhode Island Divorce and Family Law Cases!
Rhode Island Divorce Lawyers Ponder whether getting at the Truth is Prohibited in Rhode Island Family Court?
A particular Rhode Island Family Court issue arose a little more than four (4) years ago. It was in the form of a particular question that I discussed with no less than nine (9) lawyers only a few of whom I even remember and who shall remain nameless.
Yet it doesn't matter who the lawyers were. It matters that I overheard several lawyers who were unfamiliar to me discussing the same question not long ago relating to their own experiences in the Rhode Island Family Court.
The Rhode Island Family Court judges each have discretionary power by law. Most assuredly they are the authority as to what can and cannot be done in their courtrooms short of a directive from the Chief Judge of the Family Court.
One of the main things that the Rhode Island Family Court judges generally endeavor to do is to protect and preserve the family unit as a whole. I have not found this wording in any specific manual, statute, treatise, case law or Administrative Order of the Court. I have learned this consistently from numerous judges over my years of practice in the family courts and before various judges.
Yet I am not the only Rhode Island Attorney who been thwarted in his or her divorce and/or post-divorce efforts at presenting the best representation possible for clients by a judge's prohibition of calling a child of the parties as a witness in a divorce or post-divorce case.
Now, I understand and agree with the preservation of the family unit. I am a strong advocate for uncontested divorces, reasonable people, counseling for those who need it, reunification of parents with their children if it is reasonably possible without psychological injury to minor children.
Ultimately I believe this should be a concern of the RI Family Court as a judicial institution as well as the individual family court judges appointed to serve the people and address the countless issues they hear day in and day out both fairly and equitably.
Yet it is disconcerting as a Rhode Island lawyer representing a party in, for instance a post-divorce matter involving the violation of the court's order to (1) be prohibited by a judge from calling a child of the parties as a material witness to defend my client or prove my client's case when the "child of the parties" is no longer a minor and/or when the child of the parties has insisted on testifying to reveal the truth of what he or she knows has occurred, and (2) to then have the judge berate or accuse me or my client of trying to take steps to undermine and possibly destroy the family unit.
Most assuredly, if the child of the parties were a minor of younger years then I might expect some skepticism on the judge's part and the attorney and/or client might well deserve a rebuke in the eyes of some judges. Yet some judges have prohibited children of the parties who may be as old as 23 and who are married, have children of their own and who may have developed a career that rivals their own parents. In such cases, wouldn't the prohibition of testimony violate a person's right to present either their case or their defense, notwithstanding a RI Family Court Judge's concern for the preservation of the family unit?
Perhaps a proper alternative for a 17 year old might be for the RI Judge to speak with the minor child of the parties in camera with counsel so that the judge might determine the nature of the testimony, the level of it's material significance, the weight that might be given to the testimony or even the maturity level of the 17 year old minor child to determine the appropriateness of the testimony.
Clearly some attorneys might simply call a minor child to the stand and ask questions designed to emotionally injure the other parents by using the minor child merely as a tool. Such conduct should not be tolerated. Yet to jump to the conclusion that this is what is happening when one party calls a child of the parties to the stand without further examination or consideration by the judge may place blind faith in mere allegations made by counsel who is zealously representing his or her client and who might clearly benefit by the exclusion of say, the 22 year old daughter who saw and/or heard the father violate the court's order directly and without hesitation.
However, might a better route be for the Judge to suss out the nature of the testimony offered by the child of the parties and it's purpose, determine any possible bias of the child, and consider other pertinent factors.
This would seem to be a more prudent route that would result in a more equitable decision and the pursuit of justice via hearing what may be the clearest indicator of the truth as to what did or did not occur rather than a family court judge simply setting a rule that in his or her courtroom a child of the parties shall not be allowed to testify regardless of age, maturity level, or the direct importance or content of the testimony itself.
There is always the fear that as practitioners before the Rhode Island family court, that if we mention an issue that may be considered by some to be controversial that as legal practitioners we might then become a persona non-gratis (a person not in favor with the court) and thereby risk that judge's will suddenly rule against our clients at every turn.
However, I choose to believe that the members of our judiciary are above such a juvenile standard of conduct. Absent an extreme and direct encounter with a particular judge to a significantly greater degree, I believe that our judiciary is always cognizant that our family court judges are always aware that they are capable of improvement in their roles in the Rhode Island Judicial System just as we should be as Rhode Island lawyers.
This seems to simply be a matter of counter-balancing the two issues of family preservation with the search for truth with lies in each parties right to present evidence before the court to either made their case or to defend themselves against what may be unfounded allegations.
Therefore, I bring this issue to the forefront more for the consideration of the judiciary and for the betterment both of practitioners and the clients they seek to serve.
I certainly welcome any comments from the court, fellow practitioners and from the general public as I am certainly not beyond learning which I find to be a daily and never-ending practice of improvement to better serve my clients and present information to the court in a way that does not waste the court's time but also presents to the court the information needed for our judiciary to make well-informed, equitable, and just decisions for all.
Happy Holidays to the Members of the Rhode Island Family Court and to all who read my articles.
Posted by Attorney Christopher A. Pearsall on December 14, 2011 at 10:38 AM in Commentaries, Divorce & Questions, Divorce & Trials, Divorce Hearings and Trials, Divorce Lawyers, Divorce Lawyers & Practice Philosophies, Divorce Principles, Divorce Questions, Family Court & Children, Family Law Protective Measures, Minor Children, Post-Judgment Divorce Issues, Protection from Abuse, Rhode Island Divorce Articles, RI Attorney Misconduct, RI Divorce and Perspectives, RI Family Court and Witnesses, RI Family Court Judges - Philosophy, Tricky Divorce Issues | Permalink | Comments (0) | TrackBack (0)
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