Choice of Jobs in a Time of Full Employment

By Attorney Gregg Herman
May 28, 2019

Time ClockNews Item: Wisconsin’s employment rate was a record low of 2.8% in April (Milwaukee Journal Sentinel — May 17, 2019).

When it comes to employment choices, having a support obligation means that the good ol’ USA is no longer a free country.

When there is no support obligation, such as when someone is not married or – better yet – is staying married, employment choices are purely voluntary as long as the bills are getting paid. In such a world, employment choices are frequently made for reasons other than maximum financial benefits.

A person may not like working for someone else, may not like the working conditions of a particular job, may not like his or her boss or may not like a myriad of other circumstances which drive an employment choice. So, if someone chooses a lower-paying job, or even to not work for a period of time, as long as he or she is not evicted or sued for not paying a bill, it is a free country to do as one wishes.

Not so much when there is a support obligation. Then, the other party or – in litigation, the court – may very well consider the choice of employment and render an opinion on its reasonableness. Since objectivity is important to courts, often this consideration takes into account nothing else than maximum financial compensation.

What is “Shirking?”

Years ago, the term “shirking” was used to define the standard regarding the employment choice. “Shirking” seems to be about an intent to minimize income. This definition changed starting with Van Offeren v. Van Offeren, 173 Wis.2d 482, 496 N.W.2d 660 (Ct. App. 1992), in which the court of appeals held that even if a reduction of support was well intended (that is, no intent to minimize income), the court can still consider the reasonableness of the employment choice in light of the support obligation. See Gregg Herman, “Developments in Defining Shirking”, 13 W.J.F.L 100 (October, 1993)

This subjective test, one of reasonableness, has been supported in any number of cases since Van Offeren. See, e.g., Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996) and Becker v. Becker, 2014 WI App 76, 355 Wis. 2d 529, 851 N.W.2d 816. The subjective test makes sense since intent is often difficult to isolate. As stated above, employment choices are frequently made for reasons other than maximum compensation and those reasons can include the goal that the more income earned, the less support received and vice versa. Ferreting out the intent to pay less (or receive more) support from the other party from the other subjective criteria which goes into the choice of employment can be an impossible task.

Except in one way in today’s world, it has become simpler. That one way arises in instances in which a party is not working at all. Ten years ago – and it will probably happen again in the future – finding a job may have been difficult or impossible. Today, however, with a record low unemployment rate, getting a job (as opposed, perhaps, to getting the perfect job) is easy. It may be that a particular job is not to a party’s liking. Well, that’s when this is no longer a free country. When someone has a support obligation or is seeking support, the free choices available to someone without a support case do not exist.

Certainly, there are cases which are more complicated, especially when some employment choices require moving and there are minor children. But for the most part, anyone not working in today’s world is not trying hard or does not want to work. Under the subjective test of “shirking”, either way can lead a court into imputing income which that person is charged with earning, whether he or she is actually earning it.


Employment markets change and this one won’t last forever. But courts take a snap shot of current circumstances rather than predicting the future. And the current circumstances make it very difficult for anyone to explain any extended period without full employment.

Editor’s Note: This column was previously published in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.