A spouse claims an inability to earn more than minimum wage. The other spouse disagrees and offers to pay a qualified vocational evaluator to assess education, employment history, skills, and realistic job opportunities. Why should obtaining that evidence require a motion, briefing, and a court decision before a vocational evaluator can conduct an interview and produce a report?
Utah should make one limited vocational evaluation available by notice when earning capacity is disputed and material to alimony or child support. The requesting party would select the evaluator, advance the expense, and arrange the interview with reasonable notice and cooperation. A person seeking protection would have to identify an actual problem. Otherwise, the evaluation would proceed.
The law requires evidence about earning capacity
Utah Code § 81-6-203(6) governs income imputation for child support. Section 81-4-502(1)(c)–(d) requires consideration of the alimony recipient’s earning capacity and the payor’s ability to provide support. Section 81-4-503 supplies additional considerations for certain alimony recipients with diminished workplace experience or a disability.
Vocational testimony can help answer those questions. In Bond v. Bond, 2018 UT App 38, ¶¶ 8–12, the Court of Appeals affirmed income imputation supported by vocational testimony about work a spouse with multiple sclerosis could perform with accommodations. In Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶¶ 7–22, the court upheld imputation supported by vocational evidence concerning a spouse who had not practiced law for nearly nineteen years.
Neither case establishes a right to compel an evaluation by notice. They show why the evidence can matter. The procedure for obtaining it should not unnecessarily consume the money and time the evidence could help save.
Replace advance permission with notice
Rule 35 requires a motion and good cause for a court-ordered physical or mental examination. When a vocational evaluation is pursued under that rule before a commissioner, ordinary Rule 101 motion practice requires service at least 28 days before the hearing, with responses due 14 days before and replies seven days before. A recommendation may then face a Rule 108 objection, although it remains operative unless modified and an objection does not automatically produce another hearing.
The proposal is to remove ordinary vocational assessments from that advance-permission framework. Rule 26.1 should authorize them directly in domestic relations cases, much as Rule 30 generally permits party depositions on notice. The requesting party should choose a qualified evaluator and notice a reasonable date. A genuine scheduling conflict should produce another reasonable date, not a veto over discovery.
Actual disputes would still go to court. Rule 101(a)(2) already directs requests for discovery protection or compulsion to Rule 37(a). The reform would eliminate the routine application for permission, not judicial supervision when a demonstrated problem requires it.
Keep medical examinations separate
Reviewing education, discussing employment history, and identifying suitable work are different from diagnosing a physical or psychological condition. The rule should expressly exclude covered vocational evaluations from Rule 35 while preserving that rule for compelled medical examinations, psychological examinations, and clinical diagnostic testing.
A disability claim should neither automatically defeat vocational discovery nor authorize the evaluator to diagnose the person. The evaluator could consider lawfully available information about restrictions, explain the assumptions used, and assess employment under alternative supported assumptions when the medical evidence conflicts. Calling an examination “vocational” would not excuse compliance with Rule 35 when the work actually involves clinical examination.
Establish a right with practical limits
The proposal should authorize one evaluation per action, including its petitions and counterpetitions. Hiring another evaluator should not create another right to compulsory participation. A brief remote interview, paid for by the requesting party, ordinarily imposes little burden compared with the support questions it may help resolve.
Protection should remain practical. Courts should enforce the rule’s limits and preserve privileges without demanding an extraordinary showing. Reasonable accommodations and scheduling adjustments should be available for good cause. Prohibiting an otherwise authorized evaluation should require a showing that reasonable modifications cannot adequately prevent substantial harm or abuse.
Filing an objection should not automatically stop the evaluation or extend discovery. Prompt judicial consideration of a supported request for temporary protection should remain available. If a court enters a protective order, that order controls until modified.
Obtain evidence and disclose it
The requesting party would advance the evaluator’s reasonable expense. At final disposition, the court could allocate costs upon supporting findings—for example, when an unreasonable or misleading earning-capacity position made the evaluation necessary. Disagreeing with the evaluator would not itself justify reimbursement.
The completed assessment should be disclosed even if unfavorable to the person who paid. Participation would not make the evaluator neutral, concede the conclusions, or establish grounds for imputing income. Existing substantive requirements and opportunities to challenge expert evidence would remain.
The rule also needs deadlines that preserve expert disclosures and responsive discovery. Prisbrey v. Prisbrey, 2026 UT App 39, concerned late initial disclosures, but its lesson is relevant: needing evidence does not itself excuse failing to disclose it timely.
Not every case needs a vocational evaluator. But when earning capacity is disputed, a party willing to pay for one reasonable assessment should ordinarily be entitled to obtain it. Courts should address demonstrated problems with that discovery rather than require a preliminary proceeding before it can begin.
Utah Family Law, LC | divorceutah.com | 801-466-9277