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How to prove your own or your spouse’s earning capacity without spending thousands of dollars on an expert witness.

Summary: In many Utah divorce, alimony, and child support cases, proving earning capacity does not require hiring a vocational evaluator. Courts determined earning capacity long before vocational assessments became commonplace, and much of the information these experts use is now readily available to the public. But there is a catch: courts often prefer expert testimony, and a party proceeding without an expert cannot afford sloppy preparation. This article explains how to investigate earning capacity, gather and present admissible evidence, overcome common evidentiary objections, challenge unsupported expert opinions, and determine when vocational expertise really is worth paying for.

We Didn’t Always Need Vocational Evaluators. Why Should We Automatically Need Them Now?

Suppose you’re getting divorced and your spouse claims to be unable to earn more than $30,000 per year, even though he or she previously earned $90,000 annually. Or perhaps you’re the spouse accused of being voluntarily unemployed or underemployed, and the other side insists that you could earn far more than you realistically can.

Your attorney tells you that you may need a vocational evaluation to establish what you or your spouse is capable of earning. The evaluation could cost around (as of the time I write this) around $1,500-$2,000 or so, with additional fees for depositions and court testimony. Before agreeing to that expense, ask a question: What will the vocational evaluator do that you or your attorney cannot reasonably do yourselves?

Sometimes there’s a good answer. Often there isn’t.

Courts were determining earning capacity long before vocational evaluations became commonplace. In Wilson v. Wilson, 296 P.2d 977 (Utah 1956), the Utah Supreme Court discussed the need to consider the parties’ capabilities, training, and present and potential incomes when resolving the financial consequences of divorce. The trial court had found that the husband’s earning capacity exceeded $250 per month. In Klein v. Klein, 544 P.2d 472 (Utah 1975), the Utah Supreme Court described an unemployed wife whose earning capacity had nevertheless been determined to be approximately $3,600 annually.

These cases do not establish that no expert participated in either proceeding. They establish something more fundamental: determining earning capacity was already ordinary judicial work decades ago. Judges evaluated people’s previous earnings, education, training, work experience, health, available employment, and explanations for unemployment or reduced earnings. They did not need an entirely separate profession to invent the concept of earning capacity.

Today, much of the relevant information is easier to obtain than ever. Government wage statistics, job opportunities, occupational requirements, licensing records, and employment information can be researched online, often at no cost. Yet modern divorce litigation has become increasingly dependent on expert witnesses, including for questions that are not particularly complicated.

Part of the problem is how family courts are administered. Courts are often overburdened, hearings are hurried, and the pressure to dispose of cases is considerable. A professionally prepared expert report offers an attractive shortcut. Instead of conducting a painstaking independent analysis of the underlying evidence, a court can rely heavily on a seemingly ready-made expert conclusion.

That may be efficient for the court. It is not necessarily economical, accurate, or fair.

I have practiced divorce and family law for thirty years. I am not suggesting that every judge or commissioner takes shortcuts or that every vocational evaluator contributes little of value. But I have seen enough to know that parties should not assume a credentialed opinion is better than a thorough, well-supported presentation of the underlying evidence.

The challenge is that a party who proceeds without an expert must be prepared to do the work the expert would have done—and do it well enough that the court has no legitimate reason to disregard it.

First, Understand What the Law Actually Requires

Actual income and earning capacity are not necessarily the same thing. A person may be earning $30,000 annually while reasonably capable of earning $75,000. Conversely, someone who earned $100,000 in the past may no longer have a realistic opportunity to earn that much.

Utah law recognizes these distinctions.

For alimony, Utah Code § 81-4-502 requires courts to consider several factors, including the alimony recipient’s earning capacity or ability to produce income and the payor’s ability to provide support.

Utah Code § 81-4-503 addresses income imputation for certain alimony recipients whose workplace experience diminished because of agreed child-care responsibilities or disability. It permits consideration of reasonable employment barriers, efforts to improve employment, and whether the person is genuinely competitive for available positions.

For child support, Utah Code § 81-6-203(6) provides a particularly useful framework. It directs courts imputing income to consider employment potential and probable earnings based on factors that include employment opportunities, work history, occupational qualifications, education, literacy, age, health, criminal record, other employment barriers, and prevailing earnings and job availability for similarly situated people in the community.

In contested child support cases, the statute requires a hearing and findings establishing the evidentiary basis for imputation. It also restricts imputation when certain non-temporary circumstances exist, including qualifying disabilities, child-care costs, training, and unusual needs of a child.

Notice something important: these statutes identify what the court needs to determine, but they do not impose a blanket requirement that a vocational evaluator make that determination.

Indeed, the statutes provide much of the roadmap for investigating earning capacity. You need to gather reliable evidence of the relevant factors and show the court what conclusions reasonably follow. The law does not require an expert simply because the other side disputes your position.

How to Investigate and Prove Earning Capacity Yourself

Consider a hypothetical case. A husband worked as a sales manager for six years, earning approximately $90,000 annually. Shortly before the divorce, he left that position and began working part-time, earning $30,000 annually. His wife believes he is voluntarily underemployed but cannot afford a vocational evaluator. How could she build her case?

Start with actual earnings. Utah Rule of Civil Procedure 26.1 generally requires parties in divorce cases to disclose financial declarations with supporting documents, including two years of tax returns and twelve months of income records, subject to the rule’s applicable exceptions. Those records should be the starting point. Additional discovery may be necessary to establish a longer earnings history, particularly where compensation fluctuated or employment changed.

Obtain the husband’s tax returns, W-2s, pay stubs, employment agreements, commission statements, and bonus records. Determine what he actually earned, whether those earnings were consistent, and whether the compensation depended on unusual circumstances unlikely to recur.

Establish qualifications and work history. Review his résumé, LinkedIn profile, education, certifications, professional licenses, job responsibilities, and work experience. Determine what types of employment he is presently qualified to perform.

Investigate the actual employment market. The U.S. Bureau of Labor Statistics, O*NET, and Utah Department of Workforce Services provide occupational and labor-market information. Employer websites and job advertisements can identify positions, qualifications, and advertised compensation.

Find positions reasonably comparable to his former employment. Do not simply select the highest-paying jobs advertised. Compare experience requirements, location, qualifications, compensation structure, and whether the position is realistically accessible to him. Keep records of your research, including the source, date, location, job description, salary information, and applicable qualifications.

Investigate employment efforts. Discovery and testimony may establish why he left his previous job, what employment opportunities he has pursued, whether he received offers, whether he refused suitable positions, and why he is working part-time.

There is also value in contacting employers or recruiters, when appropriate, to obtain firsthand information about positions, qualifications, and compensation. A hiring manager with personal knowledge of an actual vacancy may be a more useful witness than a vocational evaluator discussing hypothetical opportunities.

Consider Klein v. Klein, 2025 UT App 170. The district court imputed a higher income to the husband based substantially on evidence from people familiar with his employment, including a plant superintendent who testified about higher-paying positions for which the husband was qualified but had not applied. The Utah Court of Appeals declined to disturb the imputation determination.

The appellate court did not, however, decide the merits of a challenge characterizing some of the lay testimony as undisclosed expert testimony, because that objection had not been preserved. That distinction matters. The case illustrates the potential value of actual employment evidence, not a blanket exemption from the rules governing opinion testimony.

Investigate facts that might undermine your own theory. Perhaps the husband lost his position because of restructuring. Perhaps the market for his skills has deteriorated. Perhaps his former compensation included unusual commissions. Perhaps he has a legitimate physical or mental limitation. If you ignore those possibilities, you may find yourself with a persuasive-looking presentation that falls apart under cross-examination.

The purpose is not to prove the largest conceivable earning-capacity figure. It is to determine what the person can realistically earn and what income the governing law permits the court to attribute to that person.

The same process works if you are defending against an allegation of voluntary underemployment. Document your actual job search, applications, interviews, offers, employment barriers, and prevailing wages for jobs you are genuinely qualified to obtain.

In Bonham v. Bonham, 2026 UT App 141, ¶ 66, the Utah Court of Appeals upheld a decision not to impute income to a spouse despite findings about her potential earnings, given her homemaking responsibilities, care of a child with special medical needs, and educational pursuits.

The existence of earning potential does not always justify imputing income. The legal analysis must account for the person’s actual circumstances.

How to Get Your Evidence Admitted Without an Expert Witness

This is where preparation becomes especially important. It is not enough to gather useful information. You must present it in a form the court can properly consider.

The rules of evidence create a genuine practical advantage for experts. Under Utah Rule of Evidence 703, an expert may base an opinion on certain facts or data that would not independently be admissible, provided experts in that field would reasonably rely on that kind of information.

A vocational evaluator may therefore review public wage statistics, job postings, occupational data, and employment information, then offer an opinion based on those materials. A party attempting to offer the materials directly may encounter objections to authenticity, hearsay, foundation, or improper lay opinion.

There is something legitimately troubling about this arrangement when the expert’s work consists largely of researching the same public information that an ordinary person could research. But Rule 703 does not automatically admit the underlying hearsay, and Rule 702 still requires a proper basis for expert testimony, including an adequate showing of reliability.

Fortunately, several evidentiary rules provide ways to present labor-market information without hiring an expert.

Authentication Is Not the Same as Proving a Statement Is True

Utah Rule of Evidence 901 generally requires evidence sufficient to support a finding that an item is what its proponent claims it is.

Suppose you personally search an employer’s website, locate a job advertisement, and save a complete copy showing the employer, position, advertised compensation, URL, and date. You may be able to authenticate that document through testimony establishing what you searched, what you found, and how you preserved it.

You do not necessarily need an expert to establish that the exhibit accurately reproduces what appeared on the website. But this proves only that the advertisement appeared as represented. It does not, by itself, prove that the vacancy was genuine, that the advertised compensation was accurate, or that the spouse could obtain the job.

A document can be authentic and still contain inadmissible assertions. Understanding the difference between authentication and hearsay will help you avoid unnecessary evidentiary problems.

Government Publications and Public Records

Official government information is often a better foundation for an earning-capacity case than a collection of internet job advertisements.

Several Utah Rules of Evidence deserve particular attention:

• Rule 902(5)—Official Publications. Qualifying official publications are self-authenticating. You do not need a separate witness merely to establish their authenticity.
• Rule 803(8)—Public Records. Qualifying public records may be admitted under this hearsay exception.
• Rule 803(17)—Market Reports and Similar Compilations. This rule recognizes certain market information and compilations generally relied upon by the public or people in particular occupations.
• Rule 201—Judicial Notice. A court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
• Rule 801(d)(2)—Opposing Party’s Statements. Qualifying statements of an opposing party may be offered against that party without being treated as hearsay.
• Rules 701 and 702—Lay and Expert Opinions. These rules distinguish permissible opinions based on a lay witness’s personal perceptions from opinions requiring specialized knowledge.

The rules do different jobs. Self-authentication does not establish that every statement in a document is true. A hearsay exception does not establish relevance. And evidence of a particular occupation’s average wage does not, without more, prove that a particular person is capable of earning that wage.

For example, a government wage table showing that a particular occupation has a median annual wage of $70,000 may be admissible under an applicable combination of Rules 902(5), 803(8), and 803(17). You must still establish that the particular publication satisfies the applicable requirements and that its contents are relevant to the individual whose earnings are disputed.

The wage table does not automatically prove that your spouse can earn $70,000. It may nevertheless provide valuable evidence when combined with proof of qualifications, experience, employment opportunities, and the local market.

Judicial Notice: Useful but Limited

Rule 201 also permits a party to request judicial notice of an appropriately identified fact from an official government publication. The court must take judicial notice when a proper request is made and the necessary information is supplied.

But be precise about what you are asking the court to notice.

Asking the court to recognize that an official government publication reports a particular wage figure is different from asking it to accept that your spouse is capable of earning that figure. Judicial notice does not eliminate the need to prove the connection between general wage information and the individual litigant.

Admissions and Job-Search Evidence

The spouse’s own résumé, employment representations, admissions, and testimony may be particularly valuable under Rule 801(d)(2), provided the statements are properly attributed to the spouse.

Job advertisements may also serve a legitimate evidentiary purpose beyond proving that the advertised positions actually existed.

Suppose you provide your spouse with several apparently suitable job opportunities during the litigation. You preserve the correspondence and establish that the spouse received it. If the spouse later claims to have diligently pursued employment, his or her response—or lack of one—may be relevant to whether reasonable job-search efforts were made.

That use does not require treating the advertisements as proof that the positions were genuinely available. It establishes notice of potential opportunities. The court must still decide what significance, if any, to attach to the spouse’s conduct.

Lay Witnesses Can Establish Facts Without Becoming Vocational Experts

Rule 701 permits lay opinion testimony that is rationally based on the witness’s perception, helpful to determining a fact, and not based on specialized knowledge governed by Rule 702. A hiring manager may testify from personal knowledge about a position, its requirements, its pay, and whether the employer was hiring. A former supervisor may describe the spouse’s duties, performance, qualifications, and compensation.

The boundary matters. A witness who begins offering specialized predictions about a spouse’s overall labor-market earning capacity may cross into expert testimony and the associated disclosure requirements.

The safer approach is usually to present independently admissible facts and ask the court to draw reasonable conclusions from them. Your objective should not be to create an amateur vocational-expert report. It should be to assemble a well-supported, admissible evidentiary record.

Why Not Agree to Use the Same Evidence a Vocational Expert Would Use?

There is another alternative that deserves far more attention than it receives: stipulations.

If both parties’ vocational evaluators would consult the same government wage tables, occupational databases, licensing records, and job advertisements, why not agree that appropriate sources may be considered without paying competing experts to gather them?

The attorneys—or the parties themselves, if unrepresented—can exchange proposed exhibits and seek an agreement concerning authenticity, admissibility, and the limited purposes for which the exhibits may be used. They can also stipulate to specific facts while preserving the right to dispute what those facts establish about earning capacity.

Be careful about the wording. An agreement that a document is authentic does not necessarily eliminate hearsay objections. An agreement that a document is admissible does not necessarily establish that every statement in it is true. But a properly drafted stipulation can substantially narrow or eliminate unnecessary evidentiary disputes.

The parties may still disagree about whether the spouse can realistically obtain a particular job, how much the spouse could earn, and whether income should be imputed. Those are legitimate disputes for the court to resolve. The question is why the parties should spend thousands of dollars fighting over the admissibility of underlying information they can both readily verify.

Not every opposing party or attorney will cooperate. But proposing reasonable stipulations costs relatively little and may reveal whether the dispute is really about the evidence or about avoiding its implications.

Do Not Underestimate the Court’s Preference for Experts—or Its Willingness to Enforce the Rules Against You

Courts often welcome expert reports because those reports do part of the analytical work that courts are supposed to perform. Judges and commissioners have crowded calendars and limited time. A vocational evaluator’s report may appear to simplify a complicated dispute into a convenient number.

The danger is that convenience can be mistaken for reliability.

An evaluator who produces a detailed report on professional letterhead, complete with tables, occupational classifications, and a specific earning-capacity figure, may receive deference that the underlying analysis does not deserve.

A report concluding that a person can earn $84,317 annually may appear impressively scientific. But perhaps the figure comes from an average wage multiplied by assumed full-time hours, with little examination of whether the particular person could actually obtain that employment.

That is the expert halo effect: the appearance of expertise can distract from the quality of the reasoning.

This is where I believe the administration of family law frequently falls short. Courts should independently evaluate the factual and methodological bases for expert conclusions, not treat the conclusions as substitutes for judicial analysis. Yet limited hearing time and the pressure to move cases along can encourage precisely that kind of reliance.

And here is the unfair practical reality: the same court that readily accepts a professionally packaged expert presentation may scrutinize a comparable presentation from a party or lay witness much more aggressively.

That does not mean you should ignore evidentiary objections or expect the judge to excuse deficiencies because you saved money by not hiring an expert. Quite the opposite. If you intend to prove earning capacity without an expert, your preparation must be better than merely adequate.

Your documents must be properly disclosed. Your witnesses must be identified. Your proposed exhibits must have the necessary foundation. Your evidence must comply with applicable hearsay rules. Your legal arguments must connect the evidence to the governing statutory factors, and your conclusions must not outrun your proof.

Utah’s procedural rules make this especially important.

Utah Rule of Civil Procedure 26 governs disclosure and discovery, including disclosure of witnesses and exhibits. Its pretrial disclosure provisions generally require trial witnesses and exhibits to be disclosed at least 28 days before trial, subject to applicable orders and exceptions.

Rule 26.1 supplies additional requirements for domestic relations cases.

For motions before domestic relations commissioners, Rule 101 imposes specific requirements regarding filings, supporting declarations, exhibits, deadlines, and page limits.

Rule 101(j)(1) requires each exhibit to be attached to an affidavit, declaration, verified motion, or verified memorandum establishing its necessary foundation. The rule also generally limits submissions to 25 pages per party per hearing, subject to specified exclusions and permission to exceed the limit, and contains special provisions for voluminous exhibits and their summaries.

Those requirements can make or break a case. Do not assume an exhibit will be considered simply because it is relevant. Do not assume you can cure an inadequate evidentiary presentation with an oral explanation at the hearing. And do not assume that proffering information eliminates the need for a proper foundation.

Nor should you assume that you can fix a deficient record later. Under Rule 108, evidence not presented to the commissioner generally cannot be introduced for the first time when objecting to the commissioner’s recommendation, subject to the rule’s limited exception for substantially changed circumstances.

A lawyer handling a case economically has no excuse for ignoring these requirements. Neither does a self-represented litigant benefit from assuming the court will overlook them.

The safest approach is to prepare each exhibit as though a well-prepared opposing attorney will object to it. Determine in advance how you will authenticate it, overcome any hearsay objection, establish relevance, and explain what it actually proves. Do not leave those questions unanswered until you are standing before the judge or commissioner.

If the court nevertheless excludes evidence you believe is admissible, make the appropriate objection or offer of proof and preserve the issue for review. A legitimate argument that evidence should be admitted is of little use if the record does not preserve it.

How to Challenge a Vocational Evaluator’s Opinion Without Hiring Another One

Suppose the other side has already hired a vocational evaluator. Do you need your own evaluator to challenge the opposing opinion?

Not necessarily.

Start by examining precisely what the evaluator did. Obtain the report and the underlying materials through applicable disclosure and discovery procedures. Review the employment records, wage data, job descriptions, and other information supporting the opinion. Then identify the assumptions on which the conclusion depends.

Did the evaluator identify positions for which the person actually qualifies? Are the advertised wages representative of realistic starting pay? Were the jobs located within a reasonable geographic area? Was the person’s employment history current enough to qualify? Were relevant physical limitations, résumé gaps, or other employment barriers considered? Did the evaluator distinguish between the existence of a job and the realistic probability of obtaining it?

Do not assume an evaluator’s failure to contact employers automatically invalidates the report. Some reliable labor-market analyses may be performed without direct employer contact. The point is to evaluate whether the methods actually used support the conclusions expressed.

Look especially closely at the difference between facts, assumptions, and speculation. A report may establish that an occupational database lists certain jobs paying between $65,000 and $90,000 annually. Whether a particular spouse can realistically obtain one of those jobs is a separate question. A credible opinion must explain how the evaluator gets from the general market information to the individual earning-capacity conclusion.

Utah Rule of Evidence 702 requires a threshold showing that the underlying expert methodology is reliable, based on sufficient facts or data, and reliably applied. An opinion is not immune from scrutiny merely because the witness has been accepted as an expert.

The best cross-examination does not consist of mocking the evaluator’s credentials. It exposes unsupported assumptions, omissions, and weaknesses in the reasoning.

And sometimes the most effective response is not cross-examination at all. It is better evidence. Actual employment records, genuine job offers, employer testimony, documented unsuccessful job searches, and realistic wage comparisons may do more to undermine an exaggerated vocational opinion than another expensive report containing competing assumptions.

When Is a Vocational Evaluation Worth Paying For?

There are cases in which genuine vocational expertise provides substantial value.

A spouse may have been out of the workforce for fifteen years. A disability may restrict the kinds of work the person can sustain. Professional credentials may have become obsolete. A specialized occupation may have few employment opportunities in the relevant region. Retraining may be necessary, and the likely outcome may be difficult to assess through ordinary research.

In such cases, an evaluator who genuinely understands vocational testing, transferable skills, functional restrictions, labor-market methods, and realistic employment opportunities may help establish facts that would otherwise be difficult to prove.

But don’t assume the complexity exists merely because one side claims it does.

Before retaining an evaluator, ask what disputed fact requires specialized knowledge, whether that fact can be established through existing records or firsthand testimony, and whether the additional value of the expert’s opinion justifies the expense.

Consider how much is at stake. An earning-capacity determination may affect support for years, so spending several thousand dollars can sometimes be economically sensible. In other cases, both parties can end up spending substantial sums on experts whose opinions differ largely because of differing assumptions rather than differing technical expertise.

Also remember that hiring an expert is not the only option. A limited consultation with an appropriate professional, an employer witness, a recruiter, or targeted discovery may resolve the difficult issue for substantially less money. If the professional will testify, comply with the applicable expert-disclosure requirements.

The decision should be based on the needs of the case, not a reflexive belief that every disputed earning-capacity issue requires its own paid specialist.

A Practical Checklist Before You Hire a Vocational Evaluator

Whether you are an attorney working within a client’s budget or a self-represented litigant, begin with these steps:

1. Identify the governing legal standard. Determine which Utah statutes and legal factors apply to the particular alimony or child support question.
2. Obtain the financial evidence. Review required disclosures, tax returns, payroll records, and, where appropriate, additional employment and compensation records.
3. Establish qualifications and work history. Document education, skills, licenses, experience, and past employment.
4. Research the actual labor market. Find appropriately comparable occupations, positions, qualifications, and wages using reliable public and employer sources.
5. Investigate employment efforts and barriers. Establish what the person has done to obtain or improve employment and what legitimate limitations may exist.
6. Prepare the evidence for admission. Preserve sources, identify witnesses, resolve authentication and hearsay issues, make necessary disclosures, and comply with court deadlines.
7. Seek stipulations. Determine whether the parties can agree on authentic records, admissible wage data, or other facts without unnecessary litigation expense.
8. Prepare an evidence-based conclusion. Connect each significant fact to the applicable legal standard and explain why the proposed earnings figure is reasonable.
9. Examine whether an expert would add anything important. If a material issue cannot reliably be resolved without specialized knowledge, consider obtaining that assistance.

This checklist is not a substitute for mastering the relevant procedural requirements. It is a way to identify what must be done before deciding whether you need an expert.

Do Not Spend Money on Expertise You Do Not Need

Our legal system should not make justice more expensive than necessary. In fact, Utah Rule of Evidence 102 expressly directs that the evidence rules be construed to administer proceedings fairly, eliminate unjustifiable expense and delay, and help secure just determinations.

Those are not unreasonable aspirations. The problem is that the administration of family law does not always live up to them.

Expert witnesses should assist courts with questions requiring specialized knowledge. They should not become expensive intermediaries through whom ordinary facts must pass before a judge will give those facts serious consideration. Nor should parties have to spend thousands of dollars on competing opinions merely because a court would rather rely on an expert’s conclusions than carefully examine the underlying evidence itself.

Still, wishing the system worked better will not win your case. You must work within the rules as they actually exist. If you want to prevail without an expert, you must be prepared to present evidence so carefully and competently that the absence of a vocational evaluator is not a legitimate weakness in your case.

Before spending thousands of dollars on a vocational evaluator, find out what you can prove without one. You may discover that you already possess much of the necessary evidence and can obtain the rest without substantial expense.

The question is not whether you can hire an expert. The question is whether you need one to prove what the evidence already shows.

Spend money on expertise when you need expertise. Do not spend it merely to pay someone else to do work you can competently do yourself.

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