My Minnesota divorce attorney tells me I shouldn’t be afraid of using a vocational evaluation in my case; should I believe them?

In the spousal maintenance cases where the obligee has the ability to work, vocational evaluations play a more prominent role.

The holding in the Passolt case poses practice challenges for spousal maintenance cases. The Minnesota Court of Appeals held in Passolt that “the ability of a spouse seeking maintenance to become self-supporting must be evaluated based on the obligee’s actual earning capacity at the time of divorce, regardless of their employment history during the marriage.” (Passolt v. Passolt, 804 N.W.2d 18, 22 (Minn. Ct. App. 2011)). This puts direct focus on the income a spouse could be earning—not just what they historically have earned—and vocational assessments often become a key source of evidence.

Evaluations need to be closely scrutinized by both the courts and attorneys. The long-standing assumptions and methodologies these experts have used need to be questioned more vigorously. Practitioners need to develop strategies for how to challenge vocational experts’ conclusions and how to protect the client against an evaluation that exudes misplaced optimism about a client’s employability. Also, this factor requires creativity beyond the standard vocational evaluation to prove the actual ability to find work and earn income versus a speculative approach.

Importantly, Minnesota law provides specific court mechanisms to bring vocational evaluations into a divorce case. Under Minnesota Rule of Evidence 706, the court can appoint a neutral expert—such as a vocational evaluator—whose opinion can be presented at trial. Additionally, Minnesota Rule of Civil Procedure 35 allows a party to request a physical, mental, or vocational examination if a spouse’s condition or employability is in controversy. These rules provide a framework that empowers both parties to gather credible evidence, but they also invite careful preparation and rebuttal.

So, should you be afraid of a vocational evaluation? Not necessarily—but you should be prepared. The legal standard requires courts to evaluate a spouse’s real-world earning potential, not abstract or overly optimistic projections. When guided by a strategic legal team, a vocational evaluation can serve as either a useful confirmation of your client’s realistic capacity—or a point-by-point exercise in cross-examination and refutation.

Citations:

• Passolt v. Passolt, 804 N.W.2d 18, 22 (Minn. Ct. App. 2011) (“The ability of a spouse seeking maintenance to become self-supporting must be evaluated based on the obligee’s actual earning capacity at the time of divorce, regardless of their employment history during the marriage.”)
• Minn. R. Evid. 706 (Permits court appointment of neutral expert witnesses, including vocational evaluators.)
• Minn. R. Civ. P. 35 (Authorizes court-ordered physical, mental, or vocational examinations when a party’s condition is in controversy.)