Proving Underemployment in a North Dakota Divorce Case
In the context of a divorce case in North Dakota, proving that your ex-spouse is underemployed can be a complex process. It often involves demonstrating that they are intentionally earning less than their potential or capability. This is particularly relevant in cases involving child support or alimony, where one party’s income significantly impacts the financial obligations of the other.
Legal Definition of Underemployment
Underemployment, in the context of family law, refers to a situation where an individual is working below their capacity, either in terms of hours or level of responsibility. This could mean working part-time when full-time work is available, or working in a position that is below one’s skill level or educational qualifications.
In North Dakota, the courts may consider a party to be voluntarily underemployed or unemployed for the purpose of calculating child support or alimony. This is outlined in the North Dakota Century Code ยง 14-09-09.7 which states that if a person is voluntarily unemployed or underemployed, child support may be calculated based on a determination of potential income.
Evidence Required to Prove Underemployment
Proving underemployment requires substantial evidence. This can include:
- Past Employment Records: Evidence of higher-paying jobs in the past can be used to demonstrate that the individual is capable of earning more.
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Job Market Analysis: Information about the current job market in the individual’s field can show that there are opportunities for higher-paying jobs that the individual is qualified for.
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Educational and Professional Qualifications: Evidence of the individual’s skills, education, and experience can be used to show that they are qualified for higher-paying jobs.
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Financial Statements: As per the rules of court, each party must file an itemized financial statement in any proceedings under this rule (d) Submission of Evidence (1). This can provide insight into the individual’s current financial situation and earning capacity.
Legal Procedures for Proving Underemployment
To prove underemployment in a North Dakota court, you would typically need to file a motion with the court and present your evidence. This could involve submitting documents, calling witnesses, or presenting expert testimony.
The court may also require the other party to produce certain documents or evidence. If they fail to do so, the court may issue an appropriate order as per (c) Failure to Produce or Deliver the Writing or Object.
Expert Testimony
In some cases, it may be beneficial to hire an expert witness, such as a vocational evaluator, to provide an assessment of the individual’s earning capacity. This can provide powerful evidence of underemployment. However, as per (5) Failure to Deliver a Report, if the report of an examination is not provided, the court may exclude the examiner’s testimony at trial.
Conclusion
Proving underemployment in a North Dakota divorce case requires a thorough understanding of the legal definitions and procedures, as well as substantial evidence. It is recommended to consult with a legal professional to ensure that you are following the correct procedures and presenting the strongest possible case.