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How to Determine a Diligent Job Search
Enter the term “Employability” into the search engine of any legal database, and you find that the issue arises in a broad array of matters. It is a frequent factor in matrimonial matters, particularly with respect to spousal maintenance and child support, and in tort and employment cases with respect to mitigation of damages. Referring to such matters, if a plaintiff in a discrimination case or a recipient spouse in a divorce action, is unemployed or under-employed and seeking compensation or maintenance, that party's employability must be ascertained in order to determine a fair and just award. Frequently, this requires consultation with, or testimony by, a vocational or employability expert.
When evaluating a party's assertion of limited income potential, courts will take relevant factors into consideration, including the efficacy of that party's efforts to secure full employment. Practitioners must consider what will persuade the court that a client (or opposing party) has, or has not, conducted a diligent search for work. Evidence of a party's willingness to work lends credibility to arguments regarding employability or its limitations, while a credible showing of a person's lack of effort toward full employment can undermine a claim. Either result affects imputation of income in matrimonial matters.
There are a number of challenges inherent to evaluating diligence in the job search process, insofar as it matters to a court of law (or, as the case may be, a mediator or arbitrator): 1) The case law on this topic is not particularly extensive and few legislative guidelines exist; 2) Incomplete (and, arguably, inadequate) answers can be found in administrative law, and 3) Market forces, including changing technology and shifting economies, influence outcomes.
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