It's possible to see a Motion to Set an Earning Capacity filed in a Rhode Island Divorce or family law matter. It is better understood when you consider the context in which it might be used.
Let's say an attorney represents a woman whose husband previously made a high 5 figure income such as $95,000 as upper level management in a software technology company. Now let's assume that this guy was laid off but after 8 months still doesn't have a job and he and his wife are depleting their savings when the wife who makes about $18,000 a year part-time at the local food mart decides to divorce him.
The wife has been used to support at almost the $100,000 mark. She's still bringing in $18,000 but he's not bringing in anything and either the market is really difficult to find a job or this fellow is just malingering.
This is the time when you would probably see an attorney for the wife file a Motion to Set an Earning Capacity for her husband. Typically this would consist of testimony by both the husband and the wife (and possibly third parties) regarding the lifestyle of the parties, the education, health, experience, and earning history of each of them. A judge might also consider the needs and expenses of each party if they are living separately.
Ultimately, the Rhode Island Family Court judge will determine the credibility of each of the witnesses, determine who is credible and should be believed and who should not and determine what earnings, if any, the person against whom the motion has been filed should be making or is capable of making...thus an Earning Capacity.
Such a motion also occurs when child support is at issue. Yet the principle behind the motion is to force an individual who isn't pulling his or her weight and is capable of doing much more to either get a job or get a higher paying job or even get two or even three jobs if necessary to meet his or her obligations.
Does it have it's downfalls? Shortcomings? Inequities?
ABSOLUTELY! I'll discuss those in another upcoming article.
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