During Arizona family law litigation where a party’s ability to work and/or earning capacity are at issue, the judge can order the party to submit to a vocational evaluation pursuant to Rule 63 of the Arizona Rules of Family Law Procedure. A vocational evaluation can be used to evaluate an individual’s employment qualifications and aptitude to determine his or her earning capacity. Most commonly, vocational evaluations are ordered in cases involving spousal maintenance, but also may be helpful to resolve certain child support disputes.
Like any other family law motion, a motion for a vocational evaluation is filed with the court and served or delivered to the other parties in the case. Unless a different deadline is imposed, the other party has ten court days to respond. The party who filed the motion then may reply within five court days. Both the response and reply periods exclude intermediate weekends and federal holidays.
If the motion is granted, the family court’s order must specify the time, place, manner, conditions, and scope of the evaluation. It also must identify the person or persons who will conduct the evaluation. Whenever appointments are ordered in family court and the parties do not agree a specific individual to perform the appointment, some judges will choose an expert. Other judges may require the parties to submit a “blind list” of experts proposed by each party from which the judge will choose. If the court does appoint an expert without input from the parties, either party can file a motion to object to the appointment pursuant to Rule 63(b)(2).
Besides the specific expert to conduct the evaluation, cost is usually the next most controversial issue. The cost of the vocational exam must be allocated to the parties. Judges have discretion to assign all or a portion of the cost to either party. It is common for judges to order evaluations to be split evenly unless there is compelling evidence of significant financial disparity between the parties. Inherently, the nature of vocational evaluations involve dispute over one party’s earning capacity. So the party who filed the motion for the evaluation should be prepared to pay a greater share or even all of the cost, subject to reallocation. Reallocation is a term used in family law to mean that the issue may be revisited later, usually as part of a final trial.
A party ordered to submit to a vocational evaluation has the right to have his or her attorney present during the evaluation. He or she also can record the evaluation unless the court specifically orders otherwise. If the party elects to record the evaluation, he or she must disclose it to the party who filed the motion.
Once the evaluation is completed, the evaluator will prepare a written report detailing his or her conclusions. If the party who completed the evaluation contests the conclusions, he or she can request a copy of the report and the evaluator’s notes. This can be important for trial preparation.
Additionally, litigants can use Rule 63 to request another party be ordered to submit to physical or mental evaluations, when appropriate.