Vocational and Lifestyle Experts: Getting to Court to See Your Side on Support Issues

I. Employability Assessments in Divorce - What You Need to Know

The purpose of evaluation is to assess current and/or future employability and wage earning capacity for the court. It can include the presentation of a vocational plan outlining specific details as to how the person will return to the job market (e.g., training time, cost, appropriate programs, entry/ceiling earnings upon plan completion, and job availability).

What are the limitations of this process? This procedure is not a method for the diagnosis or treatment of psychological problems nor does it allow for career counseling over a period of time (i.e., job development, job placement) unless it was part of the referral. Vocational tests cannot be failed, but are used only as a means of identifying the person's strengths, interests and personality, work values, and transferable work skills.

A limitation of this procedure is that it is not a method used for the diagnosis or treatment of psychological problems nor does it allow for career counseling over a period of time (i.e., job development, job placement) unless it was part of the referral. Vocational tests cannot be failed, but are used only as a means of identifying the person's strengths, interests and personality, work values, and transferable work skills.

Who is qualified to perform this evaluation? The vocational/career assessment is a master's level occupation. With three years of professional experience and recommendations from supervisors, a person can sit for a written examination leading to Board certification as a National Certified Counselor (NBCC) followed by application to sit for a written examination covering five competency areas of career counseling. With successful passage, the person becomes a National Certified Career Counselor (NCCC) through the National Council for Credentialing Career Counselors, National Vocational Guidance Association. The designation of Certified Rehabilitation Counselor (CRC) is also available through a state certification process.

What happens in a vocational evaluation? Clients may be nervous about participating in a vocational evaluation, but knowing what to expect may help.

The first step is usually a diagnostic interview, which is a question/answer procedure to gather pertinent information affecting employability (e.g. work/life experiences, health, age, length of absence from the work force, educational background, vocational/career goals or priorities, motivation, an d current family/personal situation). This will also be your opportunity to ask any questions you may have regarding this evaluation process.

The next step is vocational testing. There are a wide variety of vocational testing instruments used to assess employability. In general, these instruments cannot be passed or failed but are used to develop a work trait profile. The following areas are covered:

· Ability/aptitudes (i.e. Career Ability Placement Survey/CAPS; Wide Range Achievement Test/WRAT; Differential Aptitude Test Battery/DAT).

· Interest/personality (i.e., Strong Campbell Interest Inventory/SCII; Career Occupational Preference System/COPS' 16PF Personal Career Development Profile)

· Work values (i.e., Career Orientations Inventory; Values Card Sort)

· Skills assessment (transferable work skills) (i.e., California Career Information System/Eureka; QUEST; Microskills).

The counselor will most likely conduct labor market research to produce information as to outlook, earnings, qualifications/training requirements for specific job titles within an appropriate geographical area. Clients should have access to this information either through talking with the counselor or by reading the vocational evaluation report.

The fourth step is integrations of all information gained in the evaluation process. This includes client self-report, counselor observation, medical/psychological reports, test data, and diagnostic information. Client's feedback is an important part of this process.

Finally, recommended next steps are made based on both immediate and long-term job/career objectives/goals. These steps are based on your expressed interests as well as your ability to be employed, whether or not you want to return to a previously held job or career.

Clients generally worry about studying or preparing for this evaluation. As noted above, clients cannot pass or fail the tests. It would be helpful for a client to bring a copy of their resume (it does not have to be current) or, if they do not have a resume, they need to be prepared to discuss their educational background and work history in detail. If they are in a training program, they can bring all relevant details such as a description of the program, costs, length of the program, etc. If they are in the job search process, they can bring a written record of your efforts. In fact, it is strongly recommended that they keep a written record of all job search related activities. They can bring any relevant information such as medical reports to the evaluator. It is important that they answer the questions as honestly and completely as they can. An attorney can guide a client as to whether or not they should volunteer information. Clients need to be on time to your appointments and cooperate with the evaluator as attitudes will be noted in the report.

Clients have the right to a fair and impartial vocational evaluation and to be given the opportunity to review all test results. If the client disagree with the examiner's conclusions, they have a right to have the report examined by a second evaluator. There is no confidentiality in this process, so anything a client says relating to employability can be reported on and used in forming conclusions.

This process can be viewed as an opportunity for a client to learn more about themself from a vocational perspective. It also provides an opportunity for a client to expand their occupational knowledge and learn about careers that might interest a client and fits their particular needs, skills, abilities and interests.

Reviewing the Vocational Expert's Report

Initially, the purpose of the evaluation must be placed in the forefront. Is the evaluation being presented because someone is unemployed, underemployed or seeking a return to the workforce? Allow the audience to understand, from the start, the reason this expert is a necessary piece of the puzzle.

Next, the evaluation must thoroughly explore the particular skills, work history, and education of the party. The evaluator should delve into each position held by the party - responsibilities which accompanied the position, hours worked at the position, whether promotions were received, and compensation/benefits provided. This should flow, like a narrative, from graduation through the present. The report should also contain that party's resume, and may also contain prior and present employment contracts, offer sheets, benefit statements and any other indicia of the position, the duties performed and the compensation package. In order to assist in this process, you may discuss the contents of a document demand with your expert so that the necessary documents can be obtained prior to the evaluation. The evaluator may also investigate whether the party sought other opportunities (while employed); even if those opportunities never came to fruition. Such questions may expose another skill set or field of interest for that party.

The expert also needs to investigate the non-work factors and responsibilities of the party. For example, if a custodial parent is being evaluated for a return to work, the expert must understand any family obligations this person may have. Will there be child care? What type of child care? How will responsibility for the children be allocated between the parents and a child care provider in case of emergency or illness? The answers to these questions will ultimately affect the type of employment that party may obtain. These answers will also affect the weight given to prior work history of that party. A party who, prior to having children, traveled extensively for work in order to earn a higher level of compensation may not be able to return to such a position. The evaluator, within the report, needs to detail the non-work factors and how those factors affect the conclusion.

The report also needs to discuss in great detail the proposed plan which will allow the party to earn the income suggested by the evaluator. This is especially important when rehabilitative alimony, or alimony with a "step-down" provision, is at issue. The report should therefore delineate the period of time it will take that party to achieve the income set forth in the conclusion. The report should likewise outline the training necessary and costs related to achieving the goals set forth in the report's conclusion. Again, consideration must be given to any custodial duties of the parent in question, as this may affect the time period.

The report should also contain anecdotal information regarding the party. During the interview process, the evaluator should delve into that party's interests, goals, skills, and background. The evaluator should also interview that person's spouse, who may also have important anecdotal or labor information. This information can be utilized to determine appropriate employment opportunities of interest to that party. More importantly, it may provide a class of opportunities or an area of employment that may not have been considered by the party.

Ultimately, the evaluator must reach a conclusion, which is based upon statistical and trade information. Within that conclusion, attorneys and courts are seeking the same goal - reasonableness. No attorney wishes to present a report to the court that, in his or her own mind, is unreasonable. Like the budget pages from a Case Information Statement, the conclusion must pass the "smell-test;" that is, the facts must reasonably support the conclusion. Just as a gross annual salary of $40,000 per year (without debt accumulation) very likely cannot support an annual budget of $80,000, the high school graduate who has been out of the work force for ten years cannot reasonably be expected to return to the workforce immediately and earn a significant salary. An unreasonable conclusion will render the report, and your expert, moot.

As attorneys, there is often a focus on the "bottom line;" what can this person earn? Yet, the conclusion should focus less on the final income figure, and more on the plan for achieving that income. The conclusion should contain a summary of skills, education, training and employment history; relevant anecdotal information; a summary of statistical data; and a listing of available opportunities which meet the criteria of this particular party. The report should detail the particular training which might be necessary, the reasonable amount of time necessary to achieve that training, the reasonable cost of the training, and the availability of the training. Perhaps the expert can recommend a course of training with a specific institution, which might, for example, offer job placement services, or which has an established hiring history of its students/trainees. The expert may also find training programs offered by corporations, such as management training programs, which are available. The report may include the names and contact information for job placement agencies. In other words, in addition to the anticipated income, the report and its conclusion can be a "how-to" for that party to obtain that income. By demonstrating that the opportunities exist, and developing a plan for achieving goals, that party has a better chance of actually obtaining that employment, rather than an empty imputation of income.

II. How to Get Vocational Testimony/Evidence Admitted

Lay the appropriate foundations, including as much of his/her expertise in the specific area as possible. Do not simply introduce into evidence, without further examination, the curriculum vitae of the expert unless you are sure that the court is familiar with and recognizes your key witness as an expert in the specific area upon which you expect testimony to be elicited.

Introduce the factual basis upon which the expert relies for his/her conclusions. Proceed with a carefully structured and tight-knit elicitation of testimony regarding the specific findings, recommendations and the reasons the expert drew the particular conclusions.

Do not seek to elicit information from your expert to which your expert is not qualified or is not prepared to testify. Not only would this be embarrassing to your expert, but it would also diminish his value as an expert in your case.

Know when to quit your examination. Do not repeat questions that seek to elicit testimony already in evidence. Do not ask questions in a manner that is easily attacked by objections. Do not ask leading questions. Make sure that any psychological terminology to which your expert testifies is very clearly explained in lay terms. Keep in mind that by the time you reach the trial phase, you are likely to be so familiar with the expert's report or your expert's testimony you could almost testify to it yourself, but the court may be hearing this for the first time-it takes time to make the court understand the testimony, especially if it involves complex psychological issues and terminology.

If the evaluation report was admitted into evidence before your direct examination of the favorable evaluator, do not waste the court's time in eliciting the identical testimony. Have the expert identify and elaborate on the key reasons or findings that may clarify or strengthen what has already been written in the report. If your expert's testimony discredits or disagrees with the evaluator's report, focus simply on the areas you wish to discredit and the specific reasons. Focus on key areas, not minutiae.

III. Vocational Experts - Cross Examination Techniques

One of the best sources of vocational evidence is not the testimony of a party's own expert but, rather, the testimony of the expert on the other side of the case. If that expert makes damaging admissions on cross-examination, the admissions can be very probative.

In re Marriage of Huff: The court described the husband's expert's testimony in a footnote. The husband offered the testimony of a vocational rehabilitation counselor who had evaluated the wife. The counselor testified that the wife needed counseling and vocational training in order to reenter the labor market because she "has no experience or training right now . . . that she can use to gain access to competitive employment." The counselor concluded that the wife had the intellectual capacity to succeed in any program she decided to pursue and that, after counseling and training, the wife would be qualified to enter the labor market as a librarian, technical writer, or legal/medical secretary. On cross-examination, the counselor testified that currently there are more older workers in the labor market, but recognized that some employers still discriminate against older people. The wife did not offer a vocational expert to testify on her behalf.

The district court also ruled that "at this time [the wife] is unable to support herself through appropriate employment to make up any difference." The testimony from the husband's vocational rehabilitation counselor supports this finding. Thus, the record supports the district court's findings that maintenance was necessary in this case.

In addition to selecting the right expert, the trial attorney must also make sure that the expert knows the facts. With expert testimony, as with computers, the quality of the output depends heavily on the quality of the input. The disaster scenario from the standpoint of the spouse seeking to impute income occurs when the expert is obviously not familiar with the specific credentials of the other spouse.

In Wheaton v. Wheaton , the husband introduced testimony from a health-care professional recruiter, who testified that the wife could work as a licensed professional nurse, earning between $26,000 and $37,900. But the expert also stated that she had never seen the wife's resume or interviewed her. Further, Austin testified that "the marketplace for nurses is fairly tight at this time" and that "[t]here are not a tremendous number of opportunities."

It is important that the expert be made aware of any health limitations which might cause the employability of the spouse at issue to be different from the norm. For example, in G.V.W. v. L.M.W. , the trial court was reversed for accepting the testimony of the wife's vocational expert. After reviewing wage studies and surveying area law firms, the expert had concluded that the husband was employable for $50,000 per year as an attorney. "On cross-examination, however, she admitted that her opinion did not take into account any physical or emotional limitations that the husband may suffer." The husband's emotional limitations were significant, as the wife's own mental health expert admitted: [The expert] concluded that the husband is "a very emotionally troubled man," who requires on-going therapy to help him deal with the pain of day-to-day stress. On cross-examination, the psychologist agreed that the husband is afraid of the responsibility of making money, considers himself ineffective in holding a job, has difficulty in impulse control, and has poor organizational skills. The psychologist agreed that all of these factors would interfere with the husband's ability to function as an attorney. Because the crucial question of mental health was not considered, the expert was not credible, and the trial court's decision was reversed. "The education of an individual may indicate the capacity to earn; however, it does not guarantee the ability to earn when that individual suffers from other limitations."

Finally, the attorney should make certain that the expert addresses all of the necessary elements of earning capacity. This is the substantive core of the issue involved. To prove earning capacity, the expert must testify that specific positions are immediately available and that the spouse involved could be hired to fill them.

A few examples of persuasive testimony show how both elements work together:

Hogan v. Hogan : Wife argues that the court's findings of fact are in error because "[t]he chances of someone hiring a fifty-nine year old woman who had not worked in thirty years as a seamstress, who hadn't sewed in fifteen years, is at best speculative." We disagree. The trial court heard testimony from husband's vocational expert Dr. Bernstein that current demand for seamstresses was good and that salaries ranged from seven to ten dollars per hour. He also testified there were positions for seamstresses to work in their own homes. Substantial evidence supported the trial court's finding of wife's ability to contribute in part toward her own support.

Perlberger v. Perlberger : Dr. Kneipp performed a comprehensive vocational evaluation of Mrs. Perlberger. In Dr. Kneipp's opinion, Mrs. Perlberger was, on the basis of this evaluation and her educational background, immediately employable as a high school or university level French teacher. Dr. Kneipp cited as an example an open position for a French teacher at Germantown Academy in Fort Washington, Pennsylvania. That position paid approximately $31,500.00 per year. The trial court found this testimony credible.

Conversely, to rebut vocational testimony persuasively, an equal degree of specificity is required.

Foreman v. Ketchum : [The husband's] expert testified that there were three full-time positions available in Fairfax County where the wife could earn approximately $30,000. The wife challenged his expert on whether the vacancies were in "cued speech," her specialized field, how many applications each position had, and what the competition was for each. Under these circumstances, the court properly held that the wife had not unreasonably refused employment for which she was qualified.

The common ground in the above cases is that the testimony was specific. The expert spoke in terms of particular job openings, available at the time of trial, which the spouse at issue would probably be hired to fill, offering specific salaries.

Where there is no evidence of any specific employment opportunities available, vocational testimony is grossly defective.

Milner v. Milner : Defendant also did not present any evidence that there are other employment opportunities available to a person with plaintiff's education and work experience that would be likely to generate greater income than plaintiff is earning as a realtor. In fact, the only evidence presented on this point was the report of plaintiff's vocational expert, Samuel Goodman, which concluded that plaintiff's age, physical handicaps, and lack of readily transferable job skills, "make her a disadvantaged applicant for consideration as a worker."

Some decisions are broadly willing to accept estimates of future employability.

McHugh v. McHugh : [T]his record supports a five year rehabilitative award for the purpose of allowing the wife to rebuild her career in auto sales. The wife's vocational expert testified that it would take the wife five years to earn up to $35,000-$50,000 per year, and the trial court determined that she should go back to work. Thus, we find no abuse of discretion in the award of rehabilitative alimony.

Most decisions, however, will consider future earning capacity only when there is definite evidence of a concrete plan of education or training which is likely to result in increased earnings. Again, a few examples of successful testimony show what is required:

Evans v. Evans : Regarding an "educational need or plan of action" that must be evidenced from the record for an award of rehabilitative alimony [citation omitted], Cyndy presented herself for evaluation by the vocational rehabilitation specialist who testified on her behalf. Following his evaluation, which included a personal interview with Cyndy, taking her educational and work history, and submitting her to various vocational and personality-type testing, this expert concluded Cyndy's best course of action for reentering the work force would be to complete approximately six months of select computer courses at a vocational school and begin work in an entry-level position in the banking field. Cyndy had worked in banking before the parties moved to Sioux Falls in 1977 and her test scores in the vocational evaluation demonstrated a high interest and ability in this area. Her test scores also were high in the fields of business and sales. Although Cyndy did not express to this specialist any specific plans for employment or retraining during their interview, it was noted by the expert at trial that this is not unusual for a person who had not been career-minded during a long marriage and is presently going through a divorce. The vocational rehabilitation specialist testified he and Cyndy discussed assistance with her career development after the divorce. The expert concluded that the wife "would be able to earn $25,000 per year within three to five years," and this testimony was found to be credible.

Myers v. Myers : [A] spouse's educational plan is sufficient for the purpose of supporting a rehabilitative alimony award if the spouse identifies a career goal, a degree program aimed at realizing that goal, and a time frame during which the degree may be earned through reasonable diligence.

The educational or training plan presented by the expert must account not only for the time necessary to obtain job skills but also for the time and effort necessary to secure real employment. Where the evidence does not show a fairly specific plan for improving earnings, the greater likelihood is that the court will not find any likely future increase.

Moorehead v. Moorehead : A vocational expert . . . also testified that within three to five years she could potentially earn up to $35,000 per year as a building inspector, and he mentioned other higher paying jobs. Unfortunately, he did not have a set plan or an idea of the costs to attain a majority of these suggested positions. Ultimately, he admitted that without any additional education the wife could only earn approximately $8-10 per hour. While the vocational expert testified that with education the wife could earn up to $35,000, the trial court obviously viewed that claim with skepticism, given her prior educational experience, her poor grades, and her below average intelligence. Moreover, the expert did not lay out any type of definite rehabilitative plan that would lead to the wife earning that kind of salary. Thus, the trial court did not abuse its discretion in awarding permanent rather than rehabilitative alimony to the wife under the facts of this case.

In re Marriage of Huff : The counselor concluded that the wife had the intellectual capacity to succeed in any program she decided to pursue and that, after counseling and training, the wife would be qualified to enter the labor market as a librarian, technical writer, or legal/medical secretary. On cross-examination, the counselor testified that currently there are more older workers in the labor market, but recognized that some employers still discriminate against older people.

Indeed, one court even went so far as to reject both parties' expert testimony regarding future increases.

Carter v. Carter : Both parties hired vocational experts to assess Wife's employment opportunities. Both experts agreed Wife's best opportunity for employment was in the field of interior design. David Kutchback, Wife's expert, stated Wife's lack of a degree would impair her employability, but she could probably earn $20,000 or more in the open labor market. James England, Husband's expert, testified Wife could earn in the range of $30,000 to $40,000 in the open labor market and did not require a college degree. Although Wife was working in interior design at the time the decree was entered, her income was not near either of these amounts. [T]here was insufficient evidence in the record for the court to find, even if Wife were able to complete her degree, her financial prospects would be appreciably better in three years than they were on the date the decree was entered. Maintenance awards cannot be based on mere speculation as to the future financial condition of the spouse. Again, the key point is the failure of either expert to state any form of definite plan for increasing the wife's earnings.

IV. Lifestyle Analyses - Methods for Calculating Family Income and Finding Hidden Assets

One of the tools utilized by a forensic accountant in a divorce matter is the preparation of a Lifestyle Analysis, which is the process of analyzing and calculating the income and expenses of the parties involved. The lifestyle analysis is used to establish the standard of living during a marriage and determine the day-to-day living expenses and spending habits of each spouse. An important step in the divorce process is reviewing and disclosing financial matters. During this process, both parties will be required to prepare and sign a financial affidavit. A financial affidavit lists the assets, liabilities or debt, income, and expenses of an individual. This form is often used initially by the Court to help determine temporary support and, ultimately, to determine alimony, child support, and the division of assets between the parties.

Financial affidavits are usually prepared by a client and reviewed by an attorney. The parties often guess or estimate certain expenses because they do not take the time to fully examine their everyday expenditures. While attorneys may review a financial affidavit for the most obvious kinds of errors, omissions, and inconsistencies they are not likely to review it with a fine-tooth comb. Any omissions or errors in these documents could have a significant impact on the financial outcome of a divorce.

Unlike a financial affidavit, which is often a snapshot of an individual's finances at a certain point in time, a lifestyle analysis may review several years of financial activity. It can help to identify recurring and ordinary expenses, as well as non-recurring and unusual expenses that may be missed when preparing a financial affidavit. The results of a lifestyle analysis may be used to prove a spouse's financial needs necessary to maintain a similar standard of living after divorce.

A lifestyle analysis can be prepared for any time period, but is generally used for the last three to five years of a marriage. Typically, the longer the time period analyzed, the more credible the report, assuming there are no significant changes in spending from year to year.

A lifestyle analysis generally includes the scrutiny of all bank and credit card statements, checkbook registers, retirement accounts, personal and business tax returns, business and medical expense reimbursements, mortgage and loan statements, pay stubs, and credit reports. In instances where a spouse was not responsible for the household finances during the marriage (or has little to no access to financial records), a forensic accountant can help an attorney identify which documents to request.

While preparing a lifestyle analysis, the forensic accountant may discover the dissipation of assets or hiding of assets by another spouse. By detailing the spending activity, the analysis may reveal surprising expenditures unknown to the other spouse. The analysis could report an increase in spending which could have been used to support unknown extramarital relationships. The analysis could also report transfers or withdrawals of large sums of money which could have been used to fund a hidden account or purchase assets not listed on the financial affidavit. When the dissipation of assets is discovered, a Trier of Fact can take the finding into consideration when determining the division of assets and/or alimony.

A lifestyle analysis may help to prove additional sources of income. One step in an analysis might include comparing deposits and expenditures to known sources of funds. By demonstrating that the known marital income is well below the cost of the marital lifestyle, a lifestyle analysis may suggest that undisclosed sources of income may exist. Simply stated, the money had to come from somewhere. This analysis is not only used in family law cases, but it is also used by government agencies and in other criminal tax cases which involve income issues. It is also referred to as the "expenditures method," signifying the analysis of a person's spending patterns relative to the known sources of funds.

Once a lifestyle analysis is completed, the attorney (and ultimately the Court), will have a more accurate picture of the funds necessary to maintain the current standard of living. The analysis will help determine how much was spent on average, and the calculations may be used as a guide to help develop the budget for a non-earning spouse.

There may be instances in which a spouse is seeking a high maintenance alimony award. A lifestyle analysis can be used to support such a request. By reporting several years of spending activity, the analysis can show that a spouse has not inflated expenses in order to maximize support. To avoid potential landmines and add a degree of credibility and persuasiveness to a spouse's expenses, testimony can come from a forensic accountant. This may also reduce the risk of a spouse being discredited on the witness stand while testifying about their complex lifestyle needs during cross examination. Many divorce attorneys and their clients may prefer cross-examination of the forensic accountant by opposing counsel, rather than the client.

During a divorce, a spouse's financial life will be closely scrutinized, dissected, and questioned by opposing council (and possibly the judge). Engaging a forensic accountant to prepare a lifestyle analysis can help discover possible hidden assets or unreported income and reduce the possibility of scrutiny. The ultimate goal of a divorce is to be awarded the most equitable distribution of assets possible. A lifestyle analysis will help provide the basis for credible arguments that can demonstrate the cost of supporting the lifestyle to which a party has been accustomed.

V. Reviewing Lifestyle Reports

If your client can afford it and the case warrants it then you should have your forensic accountant prepare a lifetime analysis report. In this analysis, using spreadsheets, your accountant will lay out an estimate of the financial future of the parties. The first step in this analysis involves a proposed division of assets and debt. If this can get hammered out first the remaining issue of alimony can be tacked individually and thus with greater ease. Thus, first thing prepare the marital balance sheet. This is the report that indicates division of asset and debt. Once this is prepared you can begin to look at what assets are relevant for the purposes of determining support. For instance, some assets may be income producing. Such as investments that pay dividends or real estate where rents are received for example. Some assets can also be liquidated over many years so as to provide for the remainder of the supported spouse's needs. The idea is to create a table that is reasonable and does not appear biased. The table should describe the supported spouse's needs and detail how those needs will be met year by year by year until the date of projected death. This table thus becomes an asset for you as counsel in settlement or in trial.

After you complete your marital balance sheet your forensic accountant can get working on the other reports. These reports include, spouse's need for support, both spouse's retirement savings, both spouses investment savings, both parties living expenses, supporting spouses ability to pay support, and finally the net worth accumulation of marital assets. Except for the personal living expense reports all other reports are created with a column for the current age of the spouse. Each individual row then accounts for the following year of life until anticipated death. The other columns will vary depending on the specific report. For instance a report on a spouse' investment savings over the next 30 years may have separate columns assuming for a few different projected interest rates. This report would likely have columns for annual return, cumulative return, draws, surplus contribution or deficit, and investment balance. In this way the calculations are easily understandable to potential readers. If you get to trial be sure to get your report on a projector or big screen and then have your expert walk you through the reports. With an expert describing the report combined with observing the report itself your trial judge can get a grasp on the proposal. Remember to make your reports credible. Don't provide for unlikely assumptions in your reports. If you do and these assumptions are undermined on cross examination well then your expert's report loses significant value as a whole.

Finally, you as counsel need to keep in perspective the differences in time periods mentioned above. Make sure one spouse isn't receiving the benefit of one asset twice. For example, when making alimony determinations courts will typically look at historical income of the payer spouse along with future income projections. If part of that income was derived from an asset that is now going with the supporting spouse either in whole or in part then take account of this fact. This income which will not be the payer spouse's income going forward cannot be built into the equation for determining alimony paid out in the future. To do so would result in a windfall for the recipient spouse, essentially receiving the benefit of the asset twice. That's why you should always have a report showing the supporting spouse's projected income post-divorce and thus post separation of assets. This is the report to use, at least if you represent the supporting spouse.

VI. How to Get Lifestyle Expert Testimony/Evidence Admitted

Lay the appropriate foundations, including as much of his/her expertise in the specific area as possible. Do not simply introduce into evidence, without further examination, the curriculum vitae of the expert unless you are sure that the court is familiar with and recognizes your key witness as an expert in the specific area upon which you expect testimony to be elicited.

Introduce the factual basis upon which the expert relies for his/her conclusions. Proceed with a carefully structured and tight-knit elicitation of testimony regarding the specific findings, recommendations and the reasons the expert drew the particular conclusions.

Do not seek to elicit information from your expert to which your expert is not qualified or is not prepared to testify. Not only would this be embarrassing to your expert, but it would also diminish his value as an expert in your case.

Know when to quit your examination. Do not repeat questions that seek to elicit testimony already in evidence. Do not ask questions in a manner that is easily attacked by objections. Do not ask leading questions. Make sure that any psychological terminology to which your expert testifies is very clearly explained in lay terms. Keep in mind that by the time you reach the trial phase, you are likely to be so familiar with the expert's report or your expert's testimony you could almost testify to it yourself, but the court may be hearing this for the first time-it takes time to make the court understand the testimony, especially if it involves complex psychological issues and terminology.

If the evaluation report was admitted into evidence before your direct examination of the favorable evaluator, do not waste the court's time in eliciting the identical testimony. Have the expert identify and elaborate on the key reasons or findings that may clarify or strengthen what has already been written in the report. If your expert's testimony discredits or disagrees with the evaluator's report, focus simply on the areas you wish to discredit and the specific reasons. Focus on key areas, not minutiae.

VII. Challenging Claims Regarding Income and Spouses' Reasonable Needs

As divorce counsel you will always be thinking about a couple of core concepts such as property distribution and spousal support/alimony. Remember that though the analysis for determining the distribution of each is generally thought to be separate that the two concepts are interrelated. At the end of the day Alimony determinations are made by considering past and future lifestyle of the recipient spouse. Although it is understood that given the economies which are lost upon divorce that the parties may not enjoy the same standard of life they enjoyed during the marriage. However, they and specifically the recipient spouse, should enjoy a standard of living similar to that enjoyed during marriage. This becomes more the case with longer marriages. In long term marriages, 20 plus years, this becomes essential.

In trial as in settlement negotiations there are many ways of eliciting lifestyle and future needs. Often times the process ends with observation of the recipient spouse's financial declaration and then determining current need based on existing resources, including assets and employment income. If you are dealing with a married party of not significant income or resources then this is going to be how you handle the matter. However, when you are dealing with long term high asset marriages you need to be able to articulate the matter. To do this you will either need to be well versed in preparing various schedules or otherwise have CPA ready to prepare them for you.

Depending on which side of the case you are on you are either going to be attacking the supporting spouse's purported income, arguing that it is undervalued and over expensed or if you represent the supporting spouse you are going to argue that the supporting spouse is understating his or her income or potential income and overstating his or her expenses. Of course there will be times when the other side's estimates are accurate and in this case don't argue against what is clearly reasonable. To do so equals strike one to your credibility. Along these same lines if you only have one or two expenses which seem slightly over or understated don't make arguments against them. Don't make arguments unless they are meaningful. However, if you have a case involving lots of different over or understated expenses for example then you should go through and systematically attack each one. The purpose of this might not be so much for the sole reason of diminishing or increasing alimony but even better diminishing credibility of the other side. Any time you can seriously undermine credibility you should do so. At some time later in litigation you may find yourself in a credibility contest, it's good to be on top.

Keep in mind that there are a few time periods of relevance to you and your client. The first is the pre-separation period, the second is the post separation pre divorce period, and lastly is the post-divorce period. You may have to walk your client through these three periods on direct examination. Make sure your client clearly understands that you are breaking time into three periods. Each period is relevant. Remind your client as trial approaches to live frugally. Advise them not to buy luxury items or spend lavishly. If they do so they may lose credibility in the courtroom. If you represent the supporting spouse and he or she purchases a $50,000 Rolex leading up to trial, advise your client he or she might get slammed on cross examination. If you represent the supported spouse and you find out about these lavish expenditures then be sure to hit your adverse witness with this fact on cross examination. Use it as a threat in negotiations to achieve favorable settlement terms.


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Evans v. Evans, 559 N.W.2d 240, 248-49 (S.D. 1997).

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