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The Employability Experts Speak

Reprinted from Divorce Litigation, Volume 10, Number 11

Authors: Steve Miller and Beth Vallario

Why You May Need an Employability Expert

During a divorce, there are many factors to consider, including the employability and future earning capabilities of either spouse, that will ultimately affect the allocation of child and spousal support or rehabilitative alimony. In many situations involving long-term marriages, the husband has provided the primary source of income while the wife has remained at home raising the children. At the time the marriage is dissolved, often the wife has been out of the competitive marketplace for several years and her future employability is uncertain. An employability expert is qualified to assess the employment qualifications of the wife and identify her earning potential in appropriate vocations. Through the use of an employability expert, an attorney can successfully negotiate an out-of-court settlement or utilize the expert's testimony to reduce or increase payment for alimony and/or child support.

In the majority of matrimonial cases in which we are retained, we usually evaluate the wife, although we have been retained and had prepared evaluations for both parties. For the purposes of this article, we will often refer to the person being evaluated as wife or she.

Even years after a divorce has been finalized, an ex-spouse may petition the court to increase or decrease these payments based on charges in financial circumstances. For example, the ex-husband is laid off from his position as an accountant in which he was earning $60,000 annually. He has petitioned for a reduction in alimony based on the fact that he is unable to find a replacement job at that level and is now working for $30,000. Rather than accepting the ex-husband's statement he is unable to find comparable replacement employment, the ex-wife retains an employability expert to determine the validity of his claims. More recently, judges are also ordering evaluations for both spouses.

The purpose of this article is to outline the entire process of working with an employability expert in a matrimonial case and to offer some tips to facilitate this process.

Where to Locate an Employability Expert

There are several available sources to consider when locating an employability expert. These sources will vary from state to state; however, in New Jersey, there are several publications in which we regularly advertise, such as the New Jersey Law Journal and the Legal Pages. In addition, we advertise our services through two mass mailings a year to thousands of attorneys throughout the state. These direct mailings outline recent cases, explain our range of services, and offer free consultations. We are also in the process of creating a web site on the Internet which will provide general information regarding our services. We also advertise in the Mid-Atlantic Directory of Expert witness and Consultants.

The Initial Contact

Normally we are contacted directly by the attorney via telephone or letter. During the initial conversation between the attorney and our office, the attorney states whether he represents the husband or the wife and whom he needs evaluated. The attorney should also provide the name of the case to ensure that there are no conflicts of interest. If we have already been retained by opposing counsel, there is no need to proceed any further. The attorney should also identify his time constraints with regard to discovery deadlines or pending trial dates. In order for us to agree to take a case, there must be sufficient time to conduct the interview, complete any research (if necessary), and prepare the report.

Our fees for the evaluation and report, as well as for court testimony and travel time (if necessary), are always discussed. The attorney usually asks what is involved in an evaluation and what is required to proceed. In order to start the process, we request the attorney's name, address, and telephone number, and a file is opened. The attorney is informed that a package containing our retainer letter, fee schedule, resumes, and references will be mailed and/or faxed. We request that the attorney sign the retainer letter and return the executed retainer to our office with our fee for the evaluation and report. Court costs and travel time are always additional. The next step in the process is to schedule an interview with the wife in our office, although we will travel if necessary. We request the interview be held in our office because it saves the client the cost of travel time. At this point, the attorney usually notifies his adversary that he has retained us as the employability experts. If the adversary objects to an interview, we will provide the attorney with a certification that explains why an interview is an important component of our evaluation. Our certification accompanies the motion asking the court to compel the wife to appear in our office for an evaluation.

We always ask if the wife is currently being treated for depression or an illness (physical or psychological) and if she is taking any medications. We specifically want to know if any of these problems will interfere with her ability to work or obtain gainful employment. Based on the answers that we receive, we may decide that we do not want to take the case. It is always amazing to carry on a 15-minute conversation with an attorney who praises the abilities and past accomplishments of his client's spouse and then, only after we ask if there are any medical or physical problems, he proceeds to tell us that she has had her left leg amputated, she is blind in her right eye, and she is severely depressed and is taking 10 different types of antidepressants and anxiety medication! And, he has documentation from his adversary's medical experts stating that she is unable to work!

We were recently retained by a husband to evaluate his ex-wife. She previously worked as a stewardess and was currently unemployed. During my initial conversations with the attorney, we were not informed of any weight or health problems. When this woman walked into my office for her evaluation, we were shocked to discover that she was incredibly obese (5 feet 3 inches and approximately 275 pounds). During the first 10 minutes of the interview, we also discovered that she has been in treatment for the last 9 years at a medical center for debilitating migraine headaches. She averages 6 migraines per month and she is currently taking antidepressants and anticonvulsant medication. She also requires injections at the onset of the migraine and during the migraine to help shorten the intensity and duration. At that point, we asked the wife to step out of the office for a moment and immediately contacted the wife's attorney to inform her of these medical issues. The attorney was surprised by our information and stated that she had not been made aware of these problems by her client. Thus, it is important for the attorney to question her client regarding any physical or psychological problems, so that the experts can be informed.

Scheduling the Interview

We direct the attorney who has retained us to have the person that we are evaluating contact us directly to schedule her appointment. When the wife calls to schedule her appointment, we ask her to bring her most recent resume to the evaluation. If she has been out of the work force for a while, we request that she summarize her educational background (college, degree, correspondence courses, work-related seminars) and employment history, including dates and names. This is particularly helpful during the evaluation and saves time.

The Interview

In almost all situations, the interviews are conducted in our office and usually last between 1 and 1-1/2 hours. The length of the interview often depends on the age of the person and the length of her employment history. For example, an interview with a woman who is 28 years of age and has only 5 years of relevant work experience may be considerably shorter than a woman who is 57 years of age and has 35 years of work history.

The interviews are conducted in a relaxed yet professionally objective atmosphere. Occasionally the attorney representing one or both parties are present during the interview; however, this is rather unusual. At the onset of the interview we ask the person that we are evaluating if she knows why she is in our office. Surprisingly, in most cases, the person does not! In those situations, we describe to the individual what will be covered during the interview and approximately how long it will take.

During the evaluation, some personal information is obtained as well as an entire history of the person's educational and employment background. We ask about any extracurricular or volunteer activities in the community. If she has been out of the work force for an extended period of time, we will also ask if she has any special interests, which can be useful in identifying possible future career opportunities. For instance if someone has always wanted to be a real estate agent, we can research what is involved in becoming licensed, how long this process takes, and how much money someone can earn with no previous experience. In addition, rehabilitative training may be necessary, including training on the latest computer software (e.g., word processing and spreadsheet) and office automation.

If the person has previous experience and is currently unemployed or underemployed, we want to know why. If she claims that she has looked for work and is unable to find a job, we specifically ask what her search involved. We ask whether or not a resume has been prepared and what materials she accessed (e.g. newspaper classified ads, yellow pages, trade journals). We also ask if she utilized any employment agencies, attended any job fairs, or accessed databases on the Internet. In addition, we question her networking efforts. We also determine whether the person limited herself geographically by only applying to positions that were 15 minutes from her home or weather she was willing to travel up to 1 hour or to another state. If she limited her search activities based on the lack of transportation or an unwillingness to commute, we discuss alternative forms of transportation, including car pools, public transportation and van services provided by employers. If the person is claiming that she cannot work due to physical or psychological impairments, we request written documentation to confirm the validity of her statements.

We were recently retained in two cases to evaluate the employability of the husbands. In one particular case, the husband was a mechanical engineer with a master's degree and 10 years of experience in his professional field earning approximately $50,000. After he was laid off as a result of downsizing, he claimed that he was not able to find a job as an engineer and was working outside of his professional field earning $25,000 per year. After interviewing the husband and assessing his job search efforts, we concluded that he was underemployed and was capable of earning an annual salary in the mid to high $50,000 range based on his experience and education. We later testified to same, and as a result, the judge imputed an income of $50,000.

In another case, we evaluated a husband who was earning $68,000 as a manager of his family's bus company, which was his only employer since graduating from college. When the company closed, the husband claimed that he was not able to earn a salary in that range. After interviewing the husband, detailing his search efforts and researching the industry, we concluded that he would not be able to find replacement employment at this previous salary level and could expect to earn $25,000. Again, after testifying in court, the judge imputed an income of $25,000.

Preparation of the Report

Depending on the background of the particular person that we are evaluating, the steps involved in the preparation of our report vary. There are several sources that we may access to determine employment and salary potential, including the Occupational Outlook Handbook and the Dictionary of Occupational Titles. In addition, it is often necessary to conduct additional research in a particular field.

For example, we were retained in a particular case where the wife had been out of the competitive marketplace for over 15 years; however, she had previous experience working as a COBOL programmer for a pharmaceutical company. She was laid off due to a downsizing event, but it was clear from her rapid advancement in the company that her work was exemplary. Initially, we did not feel that this woman would be capable of earning a substantial salary considering her long absence from the work force and the considerable changes in technology, but we contacted several companies and technical consulting firms to ascertain the present employability of a COBOL programmer who has been out of the work force for 15 years. We found out that because of the year 2000 project, companies are actively recruiting COBOL programmers regardless of years out of the market and are paying extremely well. Human resource managers and consultants stated that companies are eager to train COBOL programmers to update their skills and at the same time will also teach them the latest technology so that they are marketable after the year 2000 problem. As a recruiting incentive, companies are willing to pay a premium for COBOL programmers. Our report concluded that, with a short 3-month refresher course in COBOL, this particular woman would be capable of earning a starting salary in the range of $40,000 - $60,000.

In other cases, where we have been retained to evaluate the employability of registered nurses who have been out of the marketplace for a period of time, we have contacted local hospitals and other health-care facilities to determine what is necessary to update their skills. Often, they will be required to take a nursing refresher course which can take approximately 6 months to complete and may be offered through the local community colleges or nursing schools in the area. For example, we evaluated a woman with a Bachelor of Science degree in Nursing (B.S.N.) and 10 years of experience as a registered nurse with some supervisory experience but who had not worked in over 9 years. After completing a nursing refresher course, we concluded that she would be capable of earning a salary between $45,000 and $55,000 per year.

In addition to our interview and review of documentation, reference materials, and market research, we also rely on our experience operating a full-service personnel agency where we place individuals in permanent and temporary positions in all areas (from entry-level jobs to chief financial officers of major Fortune 500 companies.) Thus, we have first-hand experience placing all types of people in all types of jobs.

Finally, If another employability expert has prepared a report, we will review and rebut the report, if necessary.

Other Employability Experts

Based on our experience, there are different types of employability experts, and it is important to recognize those differences. A majority of the "employability" or "vocational" experts come from psychological or sociological backgrounds. Although they may have advanced degrees, many do not have hands-on experience directly placing people in the marketplace. Conversely, employability experts, such as ourselves, have years of experience dealing with applicants and employers on a daily basis. This distinction is important because it pertains to practical experience and lends additional credibility to the expert.

Pretrial Preparation

Often, our report is used to facilitate a settlement; however, if the case is scheduled for trial, we may speak with the attorney prior to our testimony. In a majority of the cases in which we have been called to testify, pretrial preparation is not necessary. However, we should strongly emphasize that an attorney should notify his or her expert when a trial date is approaching to check the availability of the expert and fees. Since trial dates are commonly postponed or canceled due to settlement, experts should be notified as soon as possible regarding any scheduling changes.

Testimony

Employability experts can be extremely effective in court if they are credible and knowledgeable. Judges often reply heavily on the testimony of an employability expert to impute an income to the husband or the wife. If a long period of time has passed since the expert has interviewed the wife, it is important for the attorney to furnish the expert with any new information. For instance, if after we have issued our report another expert has evaluated the wife and has rendered a differing opinion, then we should have the opportunity to review that material prior to taking the stand.

With regard to payment for our services, it is our policy to receive payment in full prior to releasing our reports. If the opposing attorney wishes to take our depositions, payment in full is expected upon the completion of the depositions. Our fee is $300 per hour. However, it is not common in a matrimonial case to have our depositions taken. Furthermore, we will not testify in court unless a check is issued prior to our taking the stand. This policy avoids any problems with delay of payment or nonpayment.

Conclusion

Employability experts are often indispensable in deciding critical issues such as rehabilitative or permanent alimony. As the advocates for their clients, attorneys should strongly consider utilizing an employability expert if any of these issues are in dispute. Furthermore, the report of ta credible employability expert can facilitate a settlement, and, if necessary, an expert's testimony can strongly influence a judge's final decision regarding these important financial issues.

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The Miller Group

83 Stults Road

Dayton, NJ 08810

Phone: 609-395-1800

Fax: 609-395-0828

Email: [emailprotected]