What is “Earning Capacity”?

When the court is considering the amount of money that is reasonable for one former spouse or partner to pay the other, one thing it will look at is the supported person’s “earning capacity.”

If a person is asking for support, the judge will look at:

1. The marketable skills of that person;

the job market for those skills;
the time and cost required for the supported person to acquire the appropriate education or training to develop those skills; and
the possible need for retraining or education to acquire other, more marketable skills or employment.

2. The extent to which the supported person’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported person to devote time to domestic duties.

NOTE: If the court determines that the person asking for support is capable of working and is not making serious efforts to do so, or is deliberately depressing his or her income to get increased support, it may "impute" income to that person. When the court "imputes" income, it decides the amount that the person asking for support could earn, and uses that amount to set spousal support. This reduces the amount of spousal support that the other party is required to pay.

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