The California Supreme Court defines earning capacity as “the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history and the availability of employment opportunities.” Marriage of Simpson, (1992) C.4th 225, 14 Cal. Rptr. 2d 411. Due in part to the current economy, there exists a notable number of cases in which spouses have not made a diligent effort to find employment or positions that meet their earning capacities. In such cases, you have a greater chance of winning your case on support if you can get your client’s spouse to admit he or she is unaware of work that is available within a commutable driving distance, as this indirectly indicates a lack of effort. The spouse will most likely admit this because the spouse believes he or she would be in a worse position by stating he or she knew of a job. If you present this well, the court will likely do its part to motivate the spouse to accept available employment. In all likelihood, this will result in a court order requiring the spouse to find employment, or more suitable employment, by the next hearing date or have the spouse present to the court the specific efforts that have been made to resolve the situation.