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by Samuel K. Darling, Bellevue Divorce Lawyer

This article explains what to do if your spouse/ex refuses to work yet seeks financial relief in your Washington divorce or family law case. It probably strikes you as unfair and frustrating if the other party wants to take from you without trying to become self-sufficient. Good news, a judge might think so too.

Table of Contents
1) Overview of Law
2) Motion for Temporary Order to Work
3) Review Hearing
4) Seeking Evidence
5) Trial

I. Overview of Law.

This situation arises in many contexts. In family law, most financial relief is income-based, including child support, spousal maintenance, and attorney fee awards. Click the links in the previous section for articles on those subjects. If the other party refuses gainful employment, he or she generally lacks income. That in turn creates a preliminary basis for him or her to ask for more from you.

How the Law Combats Refusal to Work. The law combats this two ways. First, judges and commissioners can order a party to seek fulltime employment. Second, the law instructs or encourages jurists to “impute” parties. Impute means the court treats parties as having the income they could earn if they tried.

The Unemployed Party’s Defenses. The unemployed party, in turn, has three defenses. First, he or she can ask the court to delay imputation until he or she has had time to find a job. The court often gives an unemployed party this leeway, even if the law does not specifically allow it. Usually this issue comes up at temporary order hearings, though it can come up at trial as well. On temporary orders, the court typically delays imputation or imputes at a low number, such as fulltime at minimum wage. Then the court orders the unemployed spouse to a) search for work, b) keep a job-search log, and c) come back before the court for a return hearing a few months later. At the return hearing the court re-evaluates the parties’ finances. Typically a) the formerly unemployed spouse has a job at that point, or b) the court imputes him or her at “fulltime wages commensurate with work history and education.”

The second defense an unemployed party might make is disability. He or she might claim to be too disabled to work or work fulltime. At hearings on temporary orders, the court tends to believe claims of disability so long as the allegedly disabled party provides credible evidence, such as a doctor’s note. This is a very low bar. Doctors care about their patients and want to please them. The evidence threshold tends to be much higher at trial, where both parties might present conflicting medical records and expert testimony.

The third defense is age. The unemployed spouse might claim to be too old to work. There is no hard and fast rule regarding this. Courts evaluate it based on the parties’ circumstances, such as recent work history, the parties’ health, and whether the unemployed party can afford to retire indefinitely.

Notably, going to school probably is not a defense. According to child support case law, a party who goes to school should be imputed. That case law debatably applies by analogy to income calculations for maintenance and attorney fee awards.

Similarly, staying home with kids probably is not a defense. In child support case law, a mother who worked part-time because she had to care for her five children was imputed at fulltime earnings.

II. Motion for Temporary Order to Work.

This article provides you with what is usually the best game plan for implementing these legal principles. But the game plan starts with a motion for temporary orders. That takes substantial effort. Before implementing the game plan, contemplate whether it would be worthwhile. It would inadvisable to request temporary orders in a dissolution of a low-income, short-term marriage without children. Such a divorce would involve no child support and very little potential maintenance, and filing a motion for temporary orders would increase the unemployed spouse’s need for attorney fees.

On the other hand, it is almost always worthwhile to request a temporary order to work if the unemployed party filed his or her own motion for temporary orders on financial relief. You would need to address related issues in your declaration(s) and at the hearing anyhow. Moreover, the court will often impute or order a party to work sua sponte, meaning without a motion. You do not need to file a cross motion for temporary orders, you can simply make your argument in your response to the other side’s motion.

Our firm has a separate article on how to get temporary orders. We also have an article on how to respond to a motion for temporary orders.

In your motion and/or response, ask for the following relief:

  1. Impute the other party at what he or she could make at a fulltime job commensurate with his or her work history and education. Your declaration should provide detail on this, including exactly how much income you think he or she should be imputed and how you performed your calculations.
  2. In the alternative, order the opposing party to find work commensurate with his or her work history and education, keep a job log, and come back to court for a review hearing. Ask that the opposing party apply to at least a certain number of jobs per week. The exact number depends on the type. Someone applying for minimum wage positions should be able to apply to several per day. Someone applying to executive positions might only manage three per week. Also ask the court to order the opposing party to file the job log weekly and provide copies to all parties or their counsel.

To be clear, asking for relief “in the alternative” does not mean your motion/declaration should request one of these types of relief. You ask for both kinds of relief. The phrase “in the alternative” signals to the court you prefer the first type of relief but are offering the second type of relief as a backup option.

The court will usually take the second of the two options in this scenario.

With respect to the review hearing, the court will either a) set a hearing date or b) authorize you to file a motion for a review hearing. Typically the review hearing takes place one to three months after the initial hearing on temporary orders.

III. Review Hearing.

If the court set a review hearing (as opposed to authorizing one), think of the court’s order as the motion. The parties should respond to the motion with declarations. See our firm’s article on responding to a motion. Include one or more declarations, a financial declaration, financial source documents, a proposed child support worksheet, and proposed orders, to the extent relevant. The background section of your party declaration should explain all the relevant facts up to and including the court’s temporary order. The body of the declaration should explain the relevant changes in circumstance, such as whether the other party earnestly sought employment. Include a request for relief you believe is fair under the circumstances. For example, if the opposing party found a part-time position, you might ask the court to impute him or her at what he or she would make fulltime at the same pay rate. You would then ask the court to adjust any other financial orders accordingly, such as temporary child support and maintenance.

If the court instead authorized you to file your own motion for a review hearing, see our article on filing a motion for temporary orders. As before, include one or more declarations, a financial declaration, financial source documents, a proposed child support worksheet, and proposed orders, to the extent relevant. The background section of your party declaration should explain all the relevant facts up to and including the court’s temporary order. The body of the declaration should explain the relevant changes in circumstance, such as whether the other party earnestly sought employment. Include a request for relief you believe is fair under the circumstances.

IV. Seeking Evidence.

Often you will need or want more information regarding the opposing party’s past earnings, current earnings, job search, and health. You could use the information to file a motion to modify the temporary orders and as leverage in settlement negotiations. If all else fails, you will want as much information as possible for trial.

We have an article on discovery, the process of forcing other people to give you information. Normally you would at least send the opposing party a set of interrogatories and requests for production on all relevant topics. You might also try subpoenaing records from the opposing party’s employers (past and present), businesses the opposing party applied to for work, and the opposing party’s doctor.

For cases in which the opposing party claims disability and requests especially large amounts of financial relief, you might want to force him or her to submit to a physical or mental exam with an independent medical examiner. The article on discovery includes an example motion of this type.

As further explained in that article, the court can sanction a party who fails to comply with discovery requests. Sanctions can include a ban on related arguments regarding financial relief.

V. Trial.

Trial is where the court makes final decisions if you cannot settle beforehand. Hopefully you will have forced the opposing party to work by this point. If not, expect a difficult and expensive fight on the topic. Make sure to begin your trial preparations well in advance. Our firm has a separate article on How Trial Works in family law cases.

That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free on the internet. For more, click the resources tab in the upper right corner.

Or call us at 866-631-0028 to speak with a Genesis divorce lawyer in Bellevue or Everett, Washington. From all of us at Genesis, we wish you the best with your family law matter.

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