Earning Capacity – Divorce Attorney Analysis on Its Effects on Spousal Support in Louisiana

When two people are married in Louisiana, they share many things.  Some forms of property, the responsibilities attendant to their children, and even sometimes the debts which they have incurred over the course of the marriage.  Because marriage confers actual ownership rights to the spouses, the ramifications can be far-reaching and complex.  Sometimes a divorce attorney will have to unravel complicated webs of assets, incomes, and obligations. 

The case does not get any simpler once a divorce attorney delves into the realm of spousal support.  Some people know spousal support by its more common name: alimony.  Generally, spousal support is the financial contributions which one spouse must make to the other spouse, the general idea being that there are situations where, because of the nature of the marriage, one of the spouses would be left out if they did not receive some form of support.

In addressing this issue, a divorce attorney may turn to Louisiana Civil Code article 112.  This particular article has eight factors for a court to consider before they award spousal support.  These factors deal with the everyday lives of the spouses, and how they operated together in the marriage from a financial standpoint.  Issues such as the health of the parties, the income of the parties, and even the education of the parties, may be relevant under an article 112 analysis.  Today’s article deals with only one of the factors however, factor number (3).  This factor tells a Louisiana court to consider “the earning capacity of the parties” before awarding spousal support.

What is earning capacity?  Well it can be a variety of different things, but it generally means to a divorce attorney the amount of money that they spouses are able to make based on their skills, training, and experience.  Take for example a straightforward case of a lawyer and a housewife who have been married for over twenty years.  Let’s say that the housewife does not have a college education, and it is at least in part because she was tasked with the responsibility of raising the couple’s children.  If the marriage ends, and court turns to Code article 112, this inequality of earning capacity will probably be relevant.  That is to say, courts will likely look at the fact that one of the spouses is a lawyer and the other a professional mom and wife.  Despite the fact that a mother and wife is a more important job, it does not pay in money! 

Note that factor (3) tells a Louisiana court to look at the earning capacity of the spouses.  This is important for a few reasons.  For one thing, let’s say that a couple has been married for fifteen years, and one spouse does not work and the other spouse is the “breadwinner.”  Now let’s say that for the year leading up to one of the spouse’s getting a divorce attorney, the working spouse has been unemployed.  However, the last three jobs that the earning spouse had each paid more than five hundred thousand dollars.  Even though that spouse has been out of work lately, it is unlikely that they will be able to say that their career is irrelevant under an analysis involving article 112.  That is because, among other things, factor (3) considers the capacity of the spouse to earn money, not the present day employment situation when the divorce is actually ratified.

Will Beaumont practices law in New Orleans and Metairie.  The above is just information and not legal advice.