a. Real Estate and Valuation Experts – Areas Ripe for Examination
One of the major issues in a divorce is dividing marital or community property, and it can easily become a source of conflict. Before dividing an asset, you need to know what its worth by completing a valuation process for the property. Valuation is especially important for real estate, namely the marital home, because it’s often one of the most valuable assets owned by a couple. Being familiar with the basics of valuation methods for real estate and the role of an appraiser can help you reach a fair and reasonable agreement on the value of real estate owned between the spouses and how it should be divided.
Most spouses have a marital home. A home can be a single-family house, a condo or co-op, or even a mobile or trailer home. Some couples may have vacation or second homes, or maybe a timeshare. Non-residential property includes investment property, farm land, and business property used in the owner’s business. The monetary value of all of these kinds of real property must be assessed in a divorce.
Three valuation methods are commonly used with real estate. The Market or Sales Comparison Approach compares a property to recent sales of similar properties. These comparable sales should be as close in location and type as possible to the subject property. Adjustments are made for differences between the properties. This approach is most useful for single-family homes or properties that are sold on a unit basis, such as apartments or office space. The Capitalization of Income approach is based on the net income that a property will generate. A present worth is then determined. This complex method is often used for investment properties. The Cost Approach is based on the concept of substitution. No careful person would buy property for more than it cost to buy land and a building with equal desirability and use. Another description of this method is reproduction cost new, less depreciation and obsolescence. This method is also used as a check for the other two valuation methods. It is also used for new buildings and special use properties, and for insurance or tax purposes.
Getting appraisals or valuations of real property assets is a necessity. State laws often require judges to determine the fair market value of marital assets before deciding property division issue. While judges may refuse to make decisions without this information, they may act on information provided by just one spouse. It is best to obtain the services of a professional appraiser. Sources for finding the right appraiser include: State licensing boards for real estate appraisers ; Appraisal societies and associations, such as the American Society of Appraisers ; Securities organizations, such as the Federal Analysts Federation; Trade organizations; Telephone directories; Bar associations; and Business brokers. A court can also order appraisals of certain property.
Most appraisers rely chiefly on the cost, market and income approaches to value (and, if applicable, the development cost approach). Each technique gives the client an indication of value. In the end, one method may be more reliable than the others for any given assignment, but the appraiser should attempt to employ all applicable methods, comparing the concluded values. During the final reconciliation, the appraiser considers and selects the most likely value based on the market evidence and current valuation trends.
Cost Approach to Value
The cost approach is a methodology through which an appraiser derives value by considering the cost to create a new building with optimal physical condition and functional utility. The appraiser estimates the cost to construct a reproduction of, or replacement for, the existing structure and site improvements (including direct costs, indirect costs, and an appropriate entrepreneurial profit), and then deducts all accrued depreciation in the property being appraised from the reproduction or replacement cost of the structure as of the appraisal date. When the depreciated value of the building is measured, the value of the land is then added to this figure, and an indication of the value for the fee simple interest in the property results.
This approach is most applicable in valuing new or relatively new construction, when the existing improvements represent the highest and best use of the land, land value is well supported, and little functional or external obsolescence is evident. It is also used to estimate the value of proposed construction, additions and renovations, special purpose properties, and properties that are not frequently exchanged in the market. An estimate of probable building and development costs is an essential component of feasibility studies that test the investment assumptions on which land use plans are based. Financial feasibility is indicated when a property’s market value exceeds its total building and development cost, including a reasonable market-supported entrepreneurial profit.
The cost approach is an essential ingredient in any development cost analysis or feasibility study. It is most appropriately applied when an appraiser wants to evaluate the economics of a proposed real estate project. In valuing investment properties, the persuasiveness of the cost approach is seriously diminished by the premise that improvements can be constructed without undue delay. Development and construction of investment properties may take several months to several years and, in the eyes of most investors, this constitutes an unacceptable delay.
Market Approach to Value
The market approach is the process by which a market value estimate is derived through analyzing the market for similar properties, and comparing those prope1ties to the subject property. Market value is estimated by comparing the subject property to similar properties that have recently sold, are listed for sale, or are under contract. The major premise of the market approach is that the market value of a property is directly related to the prices of comparable, competitive prope1ties that could be proxies for the subject.
The market approach is applicable to all types of real property interests when there are sufficient recent, reliable transactions to indicate value patterns or trends in the market. For property types that are bought and sold regularly, the market approach provides a supp01table indication of market value. When data is available, this is the most direct and systematic approach to value estimation. When the number of market transactions is insufficient, the applicability of this approach may be limited. For example, the market approach is rarely applied to special purpose properties, because few similar properties may be sold in a given market, even one that is geographically broad. This approach can also be used in estimating a level of market rents, replacement cost information, depreciation, and other value parameters that may be used in the other approaches to value.
The market approach is persuasive when sufficient data is available. It is probably most useful in appraisals of properties that are not purchased for their income-producing characteristics. It provides the best indication of value for small, owner-occupied commercial or industrial properties. In a market with rapidly changing economic and market conditions, the market approach will lose much of its reliability. For example, changes in income tax Laws and zoning regulations, the availability and cost of financing, and moratoriums on buildings and infrastructure development may result in a lack of useful comparable information, whereupon the appraiser will find it difficult to rely on the market approach.
Income Approach to Value (Direct Capitalization or Discounted Cash Flow Analysis)
The income approach is an approach through which an appraiser derives a value estimate for income-producing property by converting anticipated benefits – for example, cash flows and reversions – into current property value. This conversion can be accomplished in two ways: 1) one year’s income expectancy or an annual average of several years’ income expectancies may be capitalized at a market derived capitalization rate, or at an overall rate that reflects a specified income pattern, return on investment, and change in the value of the investment; or 2) the annual cash flows may be discounted for the holding period and the reversion of the sale price, several years later, at a specified yield rate.
From an investor’s perspective, the earning power of a real estate investment is the critical element affecting its value. The fundamental investment premise is, “the higher the earnings, the higher the value.” Investment in an income-producing property represents the exchange of present dollars for the right to receive future dollars. In the income approach, an appraiser analyzes a property’s capacity to generate benefits, and converts these benefits into an indication of present value. The income approach is typically used in appraisals of all investment property that is income-producing (office buildings, shopping centers, multi-tenant warehouses, hotels, apartments and multi-tenant industrial property). This approach is also very helpful in market value appraisals of specialized properties, especially where market comparables are sometimes more difficult to find (mining properties, parking lots, landfill operations, movie theaters).
The income approach is a primary approach to valuation of investment real estate. It represents the thinking and actions of the equity investor. It is clear that investors purchase income producing properties for the future dollar benefits that these properties will produce. Thus, in all instances when appraising investment property, the income approach is the most useful and meaningful in reflecting the true motivations of buyers and sellers. It is also most useful when it is difficult, if not impossible, to adequately adjust for various market com parables to obtain a true valuation.
Discounted Cash Flow
The discounted cash flow approach is a type of income approach that can be used both to estimate the present value and to extract a discount rate from a comparable sale. “Cash flow” refers to the periodic income attributable to the interest in real property. Each cash flow, including the reversion if any, is discounted to present value, and then all present values are added together to obtain the value of the real prope1ty interest being appraised. When is it used? The earning power of real estate investment is a critical element affecting its value. In recent years, appraisers have focused on the use of discounted cash flow because it adapts well to the dynamics of the market, and can be applied to specific cash flow characteristics of a particular property. Often, the discounted cash flow more closely mirrors the behavior of market participants than any other approach to value. It is used in all types of residential, industrial, commercial, and recreational properties.
Investment Value (or Fair Rate of Return)
This approach to value is an adaptation of the income approach that evaluates investment backed expectations, and can be based on specific and sometimes subjective and personal parameters of information for a particular property. Often, a client’s investment criteria are different from the market on average. This methodology allows the appraiser to measure a specific value of goods or services to a particular investor. The appraiser will analyze a series of investment opportunities or possible decisions, and evaluate them in terms of their benefits to a given client for a particular property. Decisions involving a single parcel of real estate will often require the evaluation of other possible decisions, and an analysis of how each possibility may affect the decision being considered.
Typical kinds of assignments where investment value is appropriate include highest and best use studies, market studies, marketability studies, rent studies, absorption analyses, feasibility studies, and other studies that have a specific analytical objective. It can be applied in all types of real estate and is used by investors, developers, lenders, and other real estate professionals.
Investment value is most relevant to a specific investor with specific investment criteria.
Development Cost Approach to Value
This technique is a method used to value land when either subdivision or development represents the highest and best use of an appraised land parcel. This technique may involve industrial, residential, commercial, or recreational land. An appraiser applies the subdivision development technique by determining the optimum improvement that can be created on vacant land (or improved land, with a possibility of expanding the improvements) considering all physical, legal, and economic constraints. This valuation methodology is a residual valuation technique that encompasses the cost, income and market approaches to value. It is often used in a feasibility analysis.
Subdivision development analysis can be used for all types of land appraisals where future development for residential, commercial, industrial, and recreational use is anticipated. The appraiser first determines what actual or hypothetical improvements represent the highest and best use of the land, and then subtracts all direct and indirect costs associated with developing and marketing the proposed highest and best use. These costs may include engineering, and other expenses to clear, grade and finish the land (to build streets, roads, and sidewalks) and install utilities. Carrying costs such as taxes, insurance premiums, overhead expenses and inspection fees must be considered, along with marketing costs for sales commissions and advertising. Further deductions must be made to provide an appropriate return on the total investment during the development period, and an entrepreneurial profit for the developer.
This approach is most appropriately used when the current use of the property does not represent the highest and best use of the land.
In most families, the marital home is usually the largest asset they own. When couples divorce, the house and what will happen to it are often a major focal point of the property division proceeding. There are a number of factors that can come into play in these matters. In some cases, one spouse will buy out the other and keep the house. In others, it becomes apparent that neither spouse would be able to afford the house alone, so the court will order it to be sold and the profit split between the spouses.
There are other issues that need to be addressed with regard to the marital home. If one spouse bought the house prior to marriage and made the entire down payment with personal funds, they can seek to recover it. If one spouse made considerable improvements to the house, compensation could be awarded for the skill and labor that went into them.
If there are children, then the parent who does the majority of the child-raising generally keeps the marital home. If one partner purchased the house with separate funds and there are no children, then they can keep it and legally require the other partner to vacate. If there are no children involved, then courts vary considerably on how they distribute the marital home. Neither party typically has a legal right to ask the other to leave, but one partner can always request it. If spouses cannot agree, the court will decide based on the rules in its state and which kind of property system the state has. Ultimately it is different in every divorce, and is often dependent on the spouses’ personal circumstances.
It is useful to have some general guidelines for how much time it takes to complete an appraisal assignment. The typical financing appraisal takes four to six weeks to complete, while a typical litigation assignment may take four weeks for a phase 1 (verbal opinion), and an additional few· weeks for a phase II (written report) suitable for testimony. Complicated litigation appraisal assignments often take much longer. It helps to be aware of certain situations when preparing for trial.
If an attorney has reviewed an appraisal report and does not have questions or comments, it is a bad sign. It usually means that he or she did not understand the appraisal report in the first place, or that the report was, in fact, not read at all. If the direct testimony goes smoothly, the attorney probably understands the appraisal as well as the appraiser does. On the other hand, if the direct testimony is choppy, it is likely the attorney is reviewing the appraisal repo1t for the first time while conducting the direct examination. (Caution: if the attorney did not understand his or her own witness’ report, direct examination can be worse than cross-examination.)
The toughest cross-examination comes from a knowledgeable attorney who understands the appraisal as well as the appraiser. Usually, the opposing attorney will avoid asking open-ended questions, and will resist posing a final, summary question. Summary questions often provide an appraiser with a welcome opportunity to elaborate and, possibly, close the door on the attorney’s strategy. Wise attorneys often finish their arguments in briefs or closing arguments, as opposed to trying to accomplish them in cross-examination.
b. Challenging Business Valuators – Best Practices
The first thing to understand is “Fair Market Value” and what this term encompasses within your jurisdiction. The common definition for fair market value is “the price, expressed in terms of cash equivalence, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and un restricted market where neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.” The first place to look for your definition of value are state statutes, but often these can be confusing and require an examination of case law on the topic.
One of the toughest aspects in evaluating a family business is the “goodwill” of the business and some states include various types of goodwill in Fair Market Value Analysis. Some courts will differentiate between “enterprise” and “personal” goodwill. Personal goodwill (also known as “professional goodwill”) attaches to a particular individual rather than to the business that the individual owns. Enterprise goodwill (or “business goodwill”) is derived from characteristics specific to a particular business, regardless of who owns or operates it.
Twenty four states and the District of Columbia exclude personal goodwill from the marital estate; nineteen states include personal goodwill in the marital estate; and eight states have no formal precedent. As a general rule, if the buyer would pay very little for the business, due to expected losses of repeat customers or specific referrals to the newly formed competing entity, this points to a high degree of personal goodwill. If the selling owner would be unlikely to siphon business away from the entity that he or she sold, then there would likely be a higher degree of enterprise goodwill.
The common argument for the inclusion of good will in Fair Market Value is that otherwise the court is ignoring the contributions of the non-professional spouse to the creation of the professional spouse’s business, earning capacity, and career. Common arguments against the inclusion of good will are that it is highly speculative, results in inflated values, and requires the professional spouse to compensate the non-professional spouse of earnings he or she may never acquire.
For an example of the importance of properly valuing a business, look at Wood v. Wood. This case involved a valuation of closely held company performed by both the husband’s and the wife’s competing experts. The husband’s expert engaged in a full assessment of the company to determine FMV while the wife’s expert relied on a Buy-Sell Agreement’s formula to determine the company’s value and the husband’s interest. The majority opinion found that the trial court misapplied the law in relying on wife’s expert because of the failure to determine fair market value. The mistake for the wife was costly as the court adopted the husband’s valuation at $325,000 as opposed to the wife’s valuation at over one million. The dissent stated that a Buy-Sell Agreement is an accepted methodology for valuing goodwill. A closely held company, like goodwill, is difficult to value but the methodology was acceptable and the trial court was entitled to rely on it. While the dissent did not prevail here, pay attention to the dissenters, for they may become the majority a la Justice Hugo Black in Betts v. Brady, 316 U.S. 455 (1942) and Gideon v. Wainwright, 372 U.S. 335 (1963).
Another common issue is the application of Fair Market Value to professional practices or businesses that cannot be sold either by law or by contract. In Hamby v. Hamby, the court concluded that the husband’s insurance practice, which was inalienable pursuant to his agreement with Nationwide, still had a fair market value. Fair Market Value represents a “hypothetical” sale for equitable distribution purposes, the fact that the business could not be sold in real life was immaterial, and thus the value of the business was more than the agency’s fixed assets. In contrast, in In re Marriage of Robert E. Zeigler, the court held that the husband’s “captive” agency had no goodwill as all goodwill belonged to the parent company, which was State Farm. Valuation was essentially limited to his income which was a result of his “skill, knowledge, and hard work.” Goodwill was separate and belonged to company. Therefore it is again key to examine the precedent in your jurisdiction when conducting or cross examining a business evaluator.
The following are a few basic concepts and terms in forensic accounting:
Market Approach: Valuator tries to locate guideline businesses that have been sold in order to make a comparison of value. Similar to appraising of residential real estate, but can be difficult to use for small closely held businesses.
Asset Based Approach: Each component of the business is valued separately. Valuator estimates value by estimating cost of duplicating or replacing individual elements of the business. This approach cannot be used alone if there are intangible assets with value.
Income (Income-Based Approach): General way of determining a value indication of a business, business ownership interest, security or intangible asset using one or more methods that convert anticipated economic benefits into present single account.
Capitalization of Earnings: A method within the income approach whereby economic benefits for a representative single period are converted to value through division by a capitalization rate.
Capitalization Rate: Any divisor (usually expressed as a percentage) used to convert anticipated economic benefits of a single period of value.
Minority Discount: A discount for lack of control applicable to a minority interest.
Key Man Discount: Discount for loss of efficiency until someone is sufficiently trained to replace a key man.
Marketability Discount: Discounts for lack of marketability deal with the lack of liquidity of an ownership interest and how quickly and easily it can be converted into cash.
Additionally, on the federal level, Rev. Rul. 59-60 is the touchstone for understanding business evaluations and it also informs the law on a state level. The revenue ruling lists factors for valuation of stock in closely held corporation: (1) The nature of the business and the history of the enterprise from its inception; (2) the economic outlook in general and the condition and outlook of the specific industry in particular; (3) the book value of the stock and the financial condition of the business; (4) the earning capacity of the company; (5) the dividend paying capacity of the company; (6) whether or not the enterprise has goodwill or other intangible value; and (7) the market price of stocks of corporations engaged in the same or a similar line of business having their stock actively traded in a free and open market, either on an exchange or over the counter.
The income approach seeks to identify the future economic benefits to be generated by an entity and to compare them with a required rate of return. The first step in the valuation process, performed internally or externally, is to determine the future cash flows or “projections”. This will be the responsibility of the company’s management if using an external valuation specialist. The specialist should review the projections for reasonableness. The projections are typically performed for the upcoming five years. Although this is not a hard and fast rule, it is a rule of thumb that is commonly applied. Revenues and expenses should be projected forward from current results. The resulting amount should be appropriately tax affected to determine what the free cash flows of the entity will be. Other adjustments that should be considered are cash related items such as CAPEX, depreciation and amortization, to name a few.
After the free cash flows are determined, the entity’s numerator of the calculation is largely in place. Next, the denominator is the focus. The rate of return, or discount rate, for more developed companies is often determined through the Build-Up Method. CAPM is used in some circumstances, but the inherent difficulty in identifying a “beta” for the CAPM calculation causes many valuation specialists to use the Build-up Method. While this type of approach works for a company with more history, a new company or one just beginning to generate income and free cash flows poses a different challenge.
Investors seeking to assess a younger company may choose not to apply the income approach as it may not be applicable due to a lack of results on which to base projections. However, if there is a basis to work from, using the Build-up Method may not be appropriate. The rate of return for companies that are younger can vary quite a bit. Amounts from 20%-80% are often used for companies that are early-stage. The less risky and more reliable the projections, the closer the rate of return is likely to be nearer to the 20% end of this spectrum. Riskier, younger ventures with less proven results upon which to base the projections may use a discount rate closer to the 80% end of this range.
Taking the free cash flows discussed as the numerator and applying a rate of return, or discount rate, will result in the present value of future cash flows. The sum of these for the five years, based on the reasonable adjusted projections, provides one half of the value to be calculated.
Not many companies will simply end at five years. The valuation needs to also take into account the additional years of cash flows to be obtained. These cash flows can often be even more significant than the five years already detailed out. The terminal value, as this next amount is known, is generated by applying a long-term growth rate to the company’s free cash flows and discounting this total back to a present value as was done with the first five years’ projections. When calculating the terminal value, the growth rate should consider the stage of the company and how it is likely to grow in the future. Many times, the United States GDP can be used as an estimate for this future growth. For well developed companies, exceeding this is unlikely. For earlier-stage companies, exceeding this is not uncommon. The sum of the present values of the five year projected free cash flows and the terminal value provides the total enterprise value from the Income Approach.
The advantages to the income approach are that it is widely recognized, it is flexible in addressing companies of many different stages and natures, and it simulates a market price even if there is no active market. The disadvantages include that it relies on hypothetical projections and it utilizes a discount rate with many variables in determining the appropriate figure.
The Market approach is a fundamental method for estimating the value of an interest of a closely-held entity is an analysis of prices paid by investors for companies in the same or similar lines of business. Two common methods are:
· The Guideline Transaction Method involves searching databases for transactions in companies that are determined to be similar to the subject company. Ratios from these transactions (ex. price to discretionary earnings) are then applied to the subject company to estimate value.
· Guideline Company Method involves searching for comparable publicly-traded companies. If similar companies can be identified, certain ratios relative to these companies (ex. price to earnings) are then used as a basis for estimating the value of a subject company.
The asset approach is defined in the International Glossary of Business Valuation Terms as “a general way of determining a value indication of a business, business ownership interest, or security using one or more methods based on the value of the assets net of liabilities.” The approach uses the books of the company to identify the fair value of the assets, both tangible and intangible, and the liabilities to determine a net value for the company. Whereas the market and income approaches both focus on income statement activity, the asset approach primarily utilizes the company’s balance sheet. The asset approach is often utilized when a company is no longer operating as a going concern and is preparing for liquidation. Other times the asset approach can be used is when the business is based on assets, such as an investment vehicle, and not on income, such as a production company.
Steps in employing the asset approach are:
· Start with the balance sheet – ideally this will be “as of” the same date as the valuation date.
· Restate assets and liabilities to fair market value where necessary – this can be the most judgmental step in the asset approach.
· Identify unrecorded assets and liabilities and what their impact will be on the valuation – these may be off-balance sheet commitments or assets that are not on the balance sheet.
Most of the items on the balance sheet are valued in a very straightforward nature. Cash is cash. Marketable securities can also be as easy as cash to value due to a stated market value. Accounts Receivables and Prepaid Expenses typically have a fairly easy valuation. Property, Plant & Equipment (“PPE”) and Inventory of a company can be more difficult to value. These categories of assets should be considered carefully and valued appropriately.
There are times when a third party may be used to value certain elements of the balance sheet. PPE is a good example of this. For example, most valuation specialists are not specialists at valuing land and many companies may own land. The same can be true for a machine used in production. A company may have purchased the machine for one price and depreciated it to another. However, the value of the machine may different from either of these values based on what it could be sold for on the open market.
Liabilities can also provide similar judgmental decisions for a valuation specialist. While accounts payable and many accrued expenses are straightforward in their value due to a specific amount stated on an invoice, a liability such as a warranty accrual or a litigation accrual can be far less clear in its fair value and what it should be carried at during a valuation. Significant consideration should be given to these more opaque items on the balance sheet when performing the valuation.
A last item where judgment may come in to play is with intangible assets, such as trademarks. Self-created intangibles are not put on the balance sheet of a company and therefore do not automatically require valuing and adding to the balance sheet. However, intangibles added through acquisition or purchase may exist and the skills of the valuation specialist need to be considered in whether or not to utilize a third party to value the intangibles.
The simplest way of thinking about the asset approach is Assets – Liabilities = Asset Approach Value. This also equals “Equity” on the balance sheet. This is a very rough view but still a way in which someone could begin to gauge the value of a company through the asset approach before beginning a deeper look into each of the line items of the balance sheet.
Often, the largest asset in a case where one spouse owns a business is the business itself, and often the biggest assets of that business are not liquid. Marital property and debt is to be divided in accordance with the law in your particular state. However, in a general sense, in a dissolution of marriage action, assets and debts have to be divided in a just manner or as set forth by the laws in your state. In order to achieve a just division, it is vital to have a business properly valuated to achieve that end. Common issues are then:
Valuation disputes: The standards are often governed by local rules. Typically, valuation is considered to be Fair Market Value (“FMV”), but even how FMV is calculated or what can be considered in FMV varies by jurisdiction.
Division of the business: Will business be able to continue operating if forced to liquidate assets?
Tax ramifications: Section. 1041 of the Internal Revenue Code states: “no gain or loss shall be recognized on a transfer of property from an individual to (or in trust for the benefit of)-(1) a spouse, or (2) a former spouse, but only if the transfer is incident to the divorce.” According to Sec. 1041(c), a transfer is incident to the divorce if it occurs within one year after the divorce or “is related to the cessation of the marriage.”
A practicing divorce attorney will typically confront several typical interests in closely held corporations. These interests can be: (1) stock in the corporation; (2) membership in an LLC; (3) a partnership stake in a partnership; or (4) an ownership interest in a closely held family business.
Being able to represent a client who is either the business owner or the spouse of the business interest owner requires a basic ability to read business statements. Here are a few basic starting points. A “C” Corporation must file a separate tax return. Income earned by corporation that does not flow through to an individual’s return, except to the extent that a spouse is paid wages or compensation that will be on the spouse’s W-2 or 1099 forms. On the other hand, “S” Corporations, LLC’s, and Partnerships must file informational tax returns. There, income earned from these entities flows directly to the taxpayer and will be reflected in the individual’s tax return. Income from a single-member LLC should almost always be reflected in a Schedule C of the individual’s tax return. For a closely held family business, some basic documents are: (1) Corporate or Partnership Tax Returns; (2) Periodic Profit and Loss Statements; (3) Balance Sheets for the Business Entity; and (4) Inventory Reports, Accounts Receivable, Accounts Payable, Buy-Sell Agreements.
Attorneys preparing for a cross-examination are well aware that they won’t know more than a testifying expert about the expert’s field. Business valuation experts will be knowledgeable in concepts of valuation, types of valuation (market approach, income approach, and asset approach), revenue rulings, and capitalization rates. And they will know how to incorporate all of these into a credible report on what they think a willing buyer would pay a willing seller, under no compunction to buy or sell, to a reasonable degree of valuation certainty. But effective cross-examiners know that business valuation requires subjective professional judgments, and they hope that by showing the subjective elements, without providing an alternative, they will be able to discredit the expert.
Revenue Ruling 59-60: This ruling is at the core of a valuation, and the savvy valuation professional will expect challenges based upon it. Originally focused on the valuation of the stock of closely held corporations, it has been amplified by later revenue rulings: 83-120; 80-213; 77-287; and 65-193. The purpose of the revenue ruling, as stated in its purpose section, is to outline and review in general the approach, methods, and factors to be considered in valuing shares of the capital stock of closely held corporations for estate and gift tax purposes. It also sets out the statement of the necessity of capitalization rates but acknowledges the difficulty of setting the rates due to the wide variation of rates of returns even in the same industries and points out the factors that go into that rate. They involve the nature of the business, the risk involved, and the stability or irregularity of earnings.
The importance of this revenue ruling to a cross examination is the subjective nature of these factors:
• Can’t reasonable evaluators differ on the risk of a particular business?
• Can’t they differ on the ranges of that risk?
• Once the “cap” rate has been constructed, aren’t pieces of it subjective in the eyes of the witness?
The important thing here, for the cross-examiner, is that the higher the cap rate, the lower the value of the business; the lower the cap rate, the higher will be the business value. The lawyer is sure to make use of the fact that the expert appraising the business for the spouse who wishes to keep the business usually has the higher cap rate and vice versa. Revenue Ruling 68-609 expanded the scope of 59-60 to make its guidance applicable to the valuation of corporate guides for income and other tax preparers, as well estate and gift tax preparers.
Occasionally 68-609 will be misused by the careless expert witness-a situation you want to avoid. Sometimes the attorney will look for what appears to be a gross misuse of the rates of return used-since it’s a formula only, there is always a subjective finding of the value of intangible assets such as corporate goodwill. These findings are ripe for cross-examination, as good experts may differ on them.
Focus on the Cap Rate: One of the areas of cross-examination, then, is to ask you how you constructed the cap rate. What risk rate was used? All of these factors have a range of possible choices; the risk might be between 10% and 15%. Why did you choose 10%? How would if affect the value of the subject business had you used 12% or 13%? The attorney may ask you to go to the blackboard in the courtroom and do the math. This exercise is an attempt to bring your valuation closer to that of the attorney’s own expert.
The Minority Discount: Another area that is grist for the mill of the cross-examiner is the minority discount, used to reduce the value of the business because the seller has less than a 51% share and, theoretically, no say in the management of the venture. This is another subjective area, since an expert can again choose a number within a range. But, the attorney will wonder, should there be a discount for a minority interest where a purchaser may have little or no say in how the business is run? And if so, what should the discount be? And how would the value change if the number in the range moves up or down? Can’t reasonable experts differ? The attorney will be looking to see what approach to valuation was used and questioning whether it was appropriate.
Another potential challenge is the weighting of earnings from the beginning or ending of a period. In a falling economy, should the most recent years be given the heavier weight?
Reasonable Compensation: What reasonable compensation was used for the managing partner of the company? From what source was it derived? This is subjective and open to differing opinions. Did the expert fail to eliminate the personal goodwill in those states that do not permit it to be valued? These revenue rulings that provide guidance to valuation experts can provide trip wires for the attorneys, whether or not they understand every aspect of them. A witness who can be made to appear not to have followed the guidance loses credibility. The best preparation for a day in court is a solid, well-thought-out valuation report that has considered the areas that may be exploited in cross-examination.
To a divorce litigant, it often appears to be more cost efficient to have the business accountant prepare a valuation of his or her business for the purpose of equitable distribution. However, there are inherent dangers in utilizing the business accountant as the business owner’s expert in a divorce proceeding. Many forensic valuation experts may indeed be accountants and some company accountants may also be forensic valuation experts. However, an inherent conflict arises when the business accountant and expert are one and the same. The divorce litigant may find that the cost of not utilizing a separate expert is actually greater.
The conflicts between the role of a business accountant and litigation expert are acutely evident in the following services: Forecast/projections of future result of operations, valuations for other purposes (e.g., estate planning, financing), personal/business tax projections, determination of collectability of advances/loans to/from company, related parties or third parties, review of overhead costs/true economic profitability, and actual financial management/investment advice. For example, if the company accountant made projections or forecasts of revenues of profits, or valued the company for estate planning or gifting purposes, and those valuations are different from each other or for the divorce related valuation report, he will be subject to significant attack on cross-examination.
Most problematic, however, are adjustments to the reported income of the company that are done in almost every valuation report. These adjustments will almost always put the company accountant in a difficult position of having to either: (1) decline to make appropriate adjustments in his valuation report in order to be inconsistent with his work as the company accountant; or (2) make adjustments that conflict with adjustments that he did not make when preparing the company’s financial reports and tax returns. Once the differences in the roles between the expert and the company accountant are clear, the pitfalls of being both the testifying expert and the company accountant becomes self-evident.
Loyalty to business owner – The company accountant has a business relationship with one of the divorcing parties outside the scope of the divorce litigation. Therefore, he has more on the line if the litigation does not go well for the client, namely his job. This creates a potential loss of objectivity and independence.
Familiarity with client – The company accountant often has some relationship with the non-titled spouse. This offers a lot of fodder for cross-examination. For example, the company accountant may have had informal discussions with the non-titled spouse before the divorce about topics addressed in his report that are inconsistent with said discussions.
Ability to verify accounting records – As mentioned above, an expert often must verify or test the company accountant’s work. It is difficult to honestly test or verify the veracity of your own work (tax returns, financial statements…), especially if there are any errors.
Ethics Violations – The “appearance of impropriety” extends to the expert witness. Even though there may not be any actual conflict of interest, an appearance of impropriety may prejudice the credibility of the expert.
Fiduciary Conflicts – A company accountant may have other fiduciary responsibilities to the client or the client’s business beyond the scope of the litigation. For example, the expert may calculate the economic profit of a business, which may differ significantly from the income reported on the tax return.
Understanding of the process – Company accountants often do not understand the legal process including discovery, depositions and testimony. This lack of understanding may impede the proceeding.
The following is a non-exhaustive list of questions that highlight the key points to raise when cross-examining the person utilized as an expert by the business owner:
· How much of your annual revenues come from the Defendant?
· Would it be fair to say that it is in your best interest to do a good job for the Defendant?
· Have you discussed your opinions with the Defendant?
· Did you make any edits to your report at the request of the Defendant?
· Is it true that you play golf regularly with the Defendant?
· Has the Defendant ever mentioned to you what he thinks the business is worth?
· What analysis have you done on the accounting records, which you prepared, to determine the economic income of the business?
· Did you make any adjustments to the reported information?
· Plaintiff has estimated that there is $200,000 in unreported cash income from the business each year, which is evidenced in the lifestyle analysis, but not included in your analysis of the business. What is your exposure since you prepared the business income tax return?
· Have you ever prepared the requested analysis for the purpose of a matrimonial proceeding prior to this case?
· Do you have appropriate credentials to value a business (CPA, ABV, ASA, CBA, CDFA, CFA)?
· Have you followed the ABV Guidelines in preparing your report?
· Is it true that the income tax return reports no income from business operations of the Defendant’s business?
· Given the information on the tax return (which you prepared), how can you conclude the business income for the Defendant’s business to approximate $500,000?
· Further, how can you conclude that the marital lifestyle is $500,000 per year on average given that the only source of marital income is the Defendant’s business?
These questions are just a few examples of ways to expose issues with a business valuator and their relationship with the opposing party. Be aware, these concerns arise with any business valuator the opposing side chooses to use, not just when a company accountant is used.
First, it is important to ask about the methodology, assumptions, procedures and how the opinion of value was determined. The following are some examples of potential other questions to ask.
· Have you personally sold a business or assisted a client in buying or selling a business in the same industry? How many have you sold?
Asking the expert if he or she has sold businesses in the past is directly aimed at the expert’s experience and knowledge on real-world issues. An expert who has sold businesses has firsthand knowledge of the selling process and is likely to have a better understanding of the marketplace. An attorney should be on the lookout for a business valuation expert who is purely theoretical and has little knowledge about buyers and sellers in the real world.
· Do you know for certain if the amount you concluded to be the value of the business can be financed?
A good business valuation expert will consider more than one method as a check for reasonableness. And a great business valuation expert will take one step further by determining if the purchase price can be financed. If the opposing side’s expert determines a value for a business that cannot be paid off in five or seven years while also returning a reasonable amount to the owner, it is probably not a realistic price to pay for that business.
· Does your valuation comply with generally accepted accounting principles?
Some valuation experts are stumped by this question. Generally accepted accounting principles do not govern the valuation field. However, there are well-accepted valuation principles such as Uniform Standards of Professional Appraisal Practice and Statement on Standards for Valuation Services.
· Did you conduct a site visit? If so, when?
Generally, site visits are important to a business valuation but this question is often overlooked by attorneys. If the expert did not conduct a site valuation, how do they know what they were valuing didn’t just vanish into thin air? A site visit must be performed to physically observe the valuation subject and corroborate those observations with the information obtained from the management interview and financial records. Trust but verify.
· From your previous valuations, has any value you determined ever been substantially changed in a court decision? Has the value stood up in court?
This question further discredits the expert by showing the judge or jury that the expert’s been wrong in the past.
· Have you ever been excluded as an expert? Has your testimony ever been excluded?
This is a direct hit at the expert’s credibility if he or she answers yes to this question.
· Who hired you and how many times have you worked for them?
It’s all about perception. If the expert admits he or she has been hired by a client over and over again, the perception is that the expert will conclude a value to the client’s satisfaction whether or not it represents fair market value.
· You advertise yourself as an expert for hire, is that correct?
The intent of this question is to show the judge or jury that the expert is a “hired gun” and is likely an advocate on behalf of his or her client. The value may be skewed to favor their side and may not represent fair market value.
· How much of your professional time is devoted to expert testimony?
Score one for your side if you cross-examine a business valuation expert who spends more time on the “expert” part than the “business valuation” part. This kind of “expert” likely will be seen as an expert opinion for hire.
c. Custody Evaluators – Mock Examination
A custody evaluator may suggest or sometimes at the request of a client or opposing party, one may choose to undergo psychological testing. More in this realm is not necessarily better. At a minimum, make certain the style of test employed is both relevant and to the extent possible, reliable. Keep in mind that virtually none of these were designed with any form of legal standard in mind. However, with that said, in the right setting they can prove useful. The following are a few of the common psychological tests and standards that are employed in custody evaluations.
This is short hand for the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision. An updated version of the DSM, now the DSM-V or Fifth Edition has been published as of May 18, 2013. It is the standard classification of mental disorders used by mental health professionals in the United States intending to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems). The diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is the current edition and has been designed for use across clinical settings (inpatient, outpatient, partial hospital, consultation-liaison, clinic, private practice, and primary care), it can be used by a wide range of health and mental health professionals, including psychiatrists and other physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, and counselors. It is also a necessary tool for collecting and communicating accurate public health statistics.
The DSM essentially provides standard criteria and standard language for the diagnosis of various mental illnesses and is likely what your psychological expert will reference in making a diagnosis. One of the major goals of the DSM-IV and DSM-V has been to increase the diagnostic reliability of those who use it. The DSM consists of three major components: the diagnostic classification, the diagnostic criteria sets, and the descriptive text.
The diagnostic classification is the list of the mental disorders that are officially part of the DSM system. “Making a DSM diagnosis” consists of selecting those disorders from the classification that best reflect the signs and symptoms that are exhibited by the individual being evaluated. Associated with each diagnostic label is a diagnostic code, which is typically used by institutions and agencies for data collection and billing purposes. These diagnostic codes are derived from the coding system used by all health care professionals in the United States, known as the International Classification of Diseases, Ninth Edition, Clinical Modification (ICD-9-CM).
For each disorder included in DSM, a set of diagnostic criteria indicate which symptoms must be present (and for how long) as well as symptoms, disorders, and conditions that must not be present in order to qualify for a particular diagnosis. Many users of DSM find these diagnostic criteria particularly useful because they provide a concise description of each disorder. Furthermore, use of diagnostic criteria has been shown to increase diagnostic reliability (i.e., likelihood that different users will assign the same diagnosis to an individual). However, it is important to remember that these criteria are meant to be used as guidelines informed by clinical judgment and are not meant to be used in a cookbook fashion.
The third and final component of DSM is the descriptive text that accompanies each disorder. The text of DSM-5 systematically describes each disorder under the following headings: “Diagnostic Features”; “Associated Features Supporting Diagnosis”; “Subtypes and/or Specifiers”; “Prevalence”; “Development and Course”; “Risk and Prognostic Factors”; “Diagnostic Measures”; “Functional Consequences”; “Culture-Related Diagnostic Issues”; “Gender-Related Diagnostic Issues”; “Differential Diagnosis”; and “Recording Procedures”.
The DSM divides psychiatric diagnoses into five axes or aspects of disorder. Common Axis I disorders are depression, anxiety disorders, autism, and anorexia. Axis II disorders are personality disorders such as obsessive-compulsive, paranoid, borderline, and narcissistic. Axis III disorders include brain injuries and other medical conditions which may aggravate existing disorders.
This is the most frequently used personality test. It measures personality over a set of 10 scales based upon a national sample of 2,600 adults completed in 1989. Subsequently an MMPI-A has been developed for those aged 14 to 18 and an updated MMPI known as the MMPI-2RF began use in 2008 with an increased number of hierarchical scales. One of the biggest criticisms of the test is that minorities tend to score roughly five points higher making it appear as if there is a greater presence of psychopathology in minorities. Still the MMPI-2 and MMPI-2RF are perceived to be more reliable than the original MMPI which was based off of a small sample of rural, white Minnesota farmers. Generally, the test requires a 6thgrade reading level.
The Minnesota Multiphasic Personality Inventory is considered a protected psychological instrument, meaning it can only be given and interpreted by a psychologist trained to do so and therefore, you cannot find the test online. While it’s commonly administered by computer (and requires no direct professional involvement during its administration), psychological testing is nearly always preceded by a clinical interview by the psychologist who is doing the testing. After the computer scores the test results, the psychologist writes up a report interpreting the test results in the context of the person’s history and current psychological concerns.
The MMPI-2 is made up 10 clinical subscales, which are a result of answering certain questions on the test in a specific manner :
(1) Hypochondriasis (Hs) – The Hypochondriasis scale tapes a wide variety of vague and nonspecific complaints about bodily functioning. These complaints tend to focus on the abdomen and back, and they persist in the face of negative medical tests. There are two primary factors that this subscale measures – poor physical health and gastrointestinal difficulties. The scale contains 32 items.
(2) Depression (D) – The Depression scale measures clinical depression, which is characterized by poor morale, lack of hope in the future, and a general dissatisfaction with one’s life. The scale contains 57 items.
(3) Hysteria (Hy) – The Hysteria scale primarily measures five components – poor physical health, shyness, cynicism, headaches and neuroticism. The scale contains 60 items.
(4) Psychopathic Deviate (Pd) – The Psychopathic Deviate scale measures general social maladjustment and the absence of strongly pleasant experiences. The items on this scale tap into complaints about family and authority figures in general, self alienation, social alienation and boredom. The scale contains 50 items.
(5) Masculinity/Femininity (Mf) – The Masculinity/Femininity scale measures interests in vocations and hobbies, aesthetic preferences, activity-passivity and personal sensitivity. It measures in a general sense how rigidly a person conforms to very stereotypical masculine or feminine roles. The scale contains 56 items.
(6) Paranoia (Pa) – The Paranoia scale primarily measures interpersonal sensitivity, moral self-righteousness and suspiciousness. Some of the items used to score this scale are clearly psychotic in that they acknowledge the existence of paranoid and delusional thoughts. This scale has 40 items.
(7) Psychasthenia (Pt) -The Psychasthenia scale is intended to measure a person’s inability to resist specific actions or thoughts, regardless of their maladaptive nature. “Psychasthenia” is an old term used to describe what we now call obsessive-compulsive disorder (OCD), or having obsessive-compulsive thoughts and behaviors. This scale also taps into abnormal fears, self-criticisms, difficulties in concentration and guilt feelings. This scale contains 48 items.
(8) Schizophrenia (Sc) – The Schizophrenia scale measures bizarre thoughts, peculiar perceptions, social alienation, poor familial relationships, difficulties in concentration and impulse control, lack of deep interests, disturbing question of self-worth and self-identity, and sexual difficulties. This scale has 78 items, more than any other scale on the test.
(9) Hypomania (Ma) – The Hypomania scale is intended to measure milder degrees of excitement, characterized by an elated but unstable mood, psychomotor excitement (e.g., shaky hands) and flight of ideas (e.g., an unstoppable string of ideas). The scale taps into overactivity – both behaviorally and cognitively – grandiosity, irritability and egocentricity. This scale contains 46 items.
(10) Social Introversion (Si) – The Social Introversion scale measures the social introversion and extroversion of a person. A person who is a social introvert is uncomfortable in social interactions and typically withdraws from such interactions whenever possible. They may have limited social skills, or simply prefer to be alone or with a small group of friends. This scale has 69 items.
While there are dozens of additional content scales that have been independently developed around the MMPI-2, these are the core 10 scales used by the test.
The Rorschach Inkblot Test is a projective psychological test consisting of 10 inkblots printed on cards (five in black and white, five in color) created in 1921 with the publication of Psychodiagnostik by Hermann Rorschach. During the 1940s and 1950s, the test was synonymous with clinical psychology. Throughout much of the 20th century, the Rorschach inkblot test was a commonly used and interpreted psychological test. In surveys in 1947 (Louttit and Browne) and 1961 (Sundberg), for instance, it was the fourth and first, respectively, most frequently used psychological test.
Despite its widespread use, it has also been the center of much controversy. It has often proven to be difficult for researchers to study the test and its results in any systematic manner. The use of multiple kinds of scoring systems for the responses given to each inkblot has led to some confusion.
Prior to the 1970s, there were five primary scoring systems for how people responded to the inkblots. They were dominated by two different systems, the Beck and the Klopfer systems. The three other systems that were used less often were the Hertz, the Piotrowski and the Rapaport-Schafer systems. In 1969, John E. Exner, Jr. published the first comparison of these five systems entitled The Rorschach Systems. The findings of Exner’s ground-breaking analysis showed instead of five scoring systems for the Rorschach, the five systems differed so dramatically and significantly, it was as if five uniquely different Rorschach tests had been created. It was time to go back to the drawing board.
Given Exner’s findings, he decided to undertake the creation of a new, comprehensive Rorschach scoring system that would take into account the best components of these five existing systems, combined with extensive empirical research on each component. A foundation was established in 1968 and significant research began with a goal of creating a new, comprehensive scoring system for the Rorschach. The result was created in 1973, when Exner published the first edition of The Rorschach: A Comprehensive System. In it, he laid out the new scoring system that would become the new gold standard and the only scoring system now taught.
The Rorschach Inkblot test was not originally intended to be a projective measure of personality. Instead, it was meant to produce a profile of people with schizophrenia (or other mental disorders) based upon score frequencies. Rorschach himself was skeptical of his test being used as a projective measure.
The Rorschach is, at its most basic level, a problem-solving task that provides a picture of the psychology of the person taking it, and some level of understanding the person’s past and future behavior. Imagination is involved, most often in the embellishment of a response, but the basic process of the task has little to do with imagination or creativity. A person is shown an inkblot printed on a card and asked, “What might this be?” The responses are usually recorded verbatim (nowadays often with a recording device), because they will be later scored by the psychologist.
Exner broke down how a person responds to an inkblot into three primary phases. In phase 1, the person looks at the card while their brain encodes the stimulus (inkblot) and all its parts. They then classify the stimulus and its parts and an informal rank ordering occurs in the brain of potential responses. In phase 2, the person discards potential answers that aren’t ranked well, and censor other responses they think may be inappropriate. In phase 3, they select some of the remaining responses by reason of traits, styles, or other influences.
If a person responds to common contours of a blot, Exner theorized there was little projection going on. However, when a person starts to embellish on their answer or adding more information than they originally provided, it can be a sign that projection is now occurring. That is, the person is telling the examiner something about themselves or their lives, because they are going well beyond the features of the inkblot itself. Once a person cycles through the 10 inkblots once and tells the psychologist what they saw in each inkblot, the psychologist will then take the person through each inkblot again, asking the person who is taking the test to help the psychologist see what they saw in their original responses. This is where the psychologist will get into some detail to clearly understand what and where a person has seen various aspects in each inkblot.
The scoring of the Rorschach inkblot test is complex and requires extensive training and experience in administering the test. Only psychologists are properly trained and have the experience necessary to correctly interpret test results. Therefore, any generic “inkblot test” you may take online or administered by another professional may be of little use or validity.
The Exner scoring system examines every aspect of the response – from how much of the inkblot is used, to what story is told about the response (if any), to the level of detail and type of content is offered about the inkblot. Scoring begins by examining the developmental quality of the response. That is, how well synthesized, ordinary, vague or arbitrary the response is.
The core of scoring revolves around coding the response according to all of the blot features that have contributed to the formation of the response. The following characteristics are coded:
· Form
· Movement – when any movement occurred in the response
· Chromatic Color – when color is used in the response
· Achromatic Color – when black, white or grays are used in the response
· Shading-texture – when texture is used in the response
· Shading-dimension – when dimension is used in the response with reference to shading
· Shading-diffuse – when shading is used in the response
· Form dimension – when dimension is used in the response without reference to shading
· Pairs and reflections – when a pair or reflection is used in the response
Because many people respond to the inkblots in a complicated, detailed way, the scoring system uses the concept of “blends” to account for complex answers that involve multiple objects or the way used to describe the object. Organizational activity of the response assesses how well-organized the response is. Last, form quality is assessed – that is, how well the response fits the inkblot (according to how the person taking the test describes it). If an inkblot looks like a bear, and a person describes it as a bear, this might take an “ordinary” form quality – perfectly acceptable, but not especially creative or imaginative.
There are, of course, many popular responses for inkblots that look like some object or creature in real life. The Exner scoring system takes this into account by providing extensive tables for each card about common responses and how they might be coded.
Once each card’s responses is properly coded by a psychologist, an interpretative report is formulated. The interpretative report seeks to integrate the findings from across all the responses on the test, so that one outlying response is not likely to impact the overall test’s findings. The psychologist will first examine the validity of the test, stress tolerance and the amount of resources that available to the individual being examined versus the demands being made upon the individual at this time. Next, the psychologist will examine the cognitive operations of the individual, their perceptual accuracy, flexibility of ideas and attitudes, their ability to temper and control their emotions, goal orientation, self-concept and interest and relationships with others. There are also a number of special indices that are used less often to determine suicidal ideation, depression, schizophrenia and other concerns. Usually these things can be more quickly assessed through a clinical interview, but might help to flesh out areas of concern in an individual where some questions remain.
The Rorschach is not a magical insight into a person’s soul. Instead it is an empirically-sound, projective testing measure that has been backed up with nearly four decades of modern research. Through asking people to express what they see in a simple set of ten inkblots, people can often show a little bit more of themselves than their conscious selves may have intended – leading to better insights into the underlying motivations of the person’s current issues and behaviors.
The current version, the MCMI-III, was published in 1994 and reflected revisions made in the DSM-IV. This version eliminated specific personality scales and added scales for depression and PTSD bringing the total number of scales to 14 personality scales, 10 clinical syndrome scales, and 5 correction scales. The previous 3-point item-weighting scale was modified to a 2-point scale. Additional content was added to include child abuse, anorexia and bulimia. The Grossman Facet scales are also new to this version. The MCMI-III is composed of 175 true-false questions that reportedly is completed in 25 to 30 minutes.
This test was designed to provide information on diagnosing psychopathology and specific disorders in the DSM-IV. It is designed for those over 18 years of age with an 8 th grade reading level. Also, keep in mind that it was developed using clinical populations, i.e. patients in psychiatric hospitals, although it seems to retain validity on non-clinical populations. The test contains twenty eight scales, fourteen of which measure personality disorders (Axis II) and ten of which measure depression and anxiety, etc. (Axis I). Test results may be considered invalid based on a number of different response patterns on the modifying indices.
Disclosure is the only score in the MCMI-III in which the raw scores are interpreted and in which a particularly low score is clinically relevant. A raw score above 178 or below 34 is considered not to be an accurate representation of the patient’s personality style as they either over-or under-disclosed and may indicate questionable results. Desirability or Debasement base rate scores of 75 or greater indicate that the examiner should proceed with caution. Personality and Clinical Syndrome base rate scores of 75-84 are taken to indicate the presence of a personality trait or clinical syndrome (for the Clinical Syndromes scales). Scores of 85 or above indicate the persistence of a personality trait or clinical syndrome.
Invalidity is a measure of random responding, ability to understand item content, appropriate attention to item content, and as an additional measure of response style. The scale is very sensitive to random responding. Scores on this scale determine whether the test protocol is valid or invalid.
This test has a patient view a series of pictures and the individual is then asked to tell a story about the content of the picture such as what events led up to this photo, what is happening at the moment, and what the final outcome will be. The concept behind this test is that these stories produce less guarded responses and thus a greater insight into the personality of the subject. Criticisms of this test are that there is no widely used scoring system and test-retest reliability is often low. It also, at least in comparison to other tests, seems to generate low levels of accuracy with regard to clinical diagnoses.
Similar to the TAT described previously, this test is a projective test where the subject completes a sentence from a provided stem. The length of the test varies but it is believed to show attitudes, beliefs, and motivations. The test can be interpreted through intuitive analysis or through a scoring system.
A thorough evaluation should include a good life history. Although there has been a good deal of discussion among judges about the relevance of early historical information, it is important to include as much early history as possible. A good evaluation should demonstrate the expert’s deep understanding and working knowledge of each parent’s individual psychology and philosophy of child rearing. To truly understand who a parent is and how he/she “arrived” at where the parent is today, a competent evaluator should demonstrate that he or she understands the events that led up to the current crisis. Those who were political science majors instead of psychology majors would agree. Understanding national and world politics today is impossible without the context of history. Evaluations differ in the amount of history provided, but a good evaluation should provide a significant amount of relevant history.
In a personal time line, the following questions are often asked: Are the children’s grandparents living or dead, married or not? If living, where do the grandparents live, and are they a part of the children’s lives? How many siblings does the client have, and what is his or her relationship historically and presently with the siblings? What contact does the client have with extended family, and how often? Briefly, what was the client’s life like from birth to age 12? From 12 to 18? From 18 to 30? What is the client’s educational history? What is the client’s work history? What is the client’s current living situation, including all the household members? If there are minor children other than those in question, what are the custody arrangements concerning those children? What is the client’s drug and alcohol history, including DUIs and hospitalizations, if any? What is the client’s domestic violence history? Who was the client’s family at these times?
If you have determined that medical records and other mental health evidence would be relevant and useful in your case, you need to acquire a complete copy of the records. If they are your own client’s records, this can be fairly straight forward and your client can request a copy of all of their own medical records. If it is the opposing party’s records, you may need a court order to view the records or you can attempt to gain the records through other discovery methods.
Be aware, when dealing with medical records, you will often need a form which complies with the Health Insurance Portability and Accountability Act (HIPAA). Under HIPAA patients and their legal and authorized representatives are entitled to review medical records pertaining to their own medical treatment.
Each jurisdiction has its own particular rules, but generally you must meet the following requirements to get a medical record or a portion of a medical record admitted. First, the record must be an original copy or, if not, a certified copy of the original. Second, the record must be a complete and accurate copy and must be certified as such. Third, the use of the record must not be barred by privilege-in other words, you already should have obtained a waiver of this privilege. Remember these are just a general guideline and it is important to check with your local jurisdiction to make sure you are completing all the required steps.
Many jurisdictions require the custodian of the records of a doctor’s office to come in and testify that these records are kept in the ordinary course of business in order to get them in under the business record exception rule. Most jurisdictions require the following foundation for the admissibility of hospital records: The record must be a regular form of entry kept in the regular course of business of a hospital; the particular entry must be made in the usual course of business; the entry must be made close in time to the fact that it purports to record. Depending on your jurisdiction, you may also need to check whether or not a medical record is considered hearsay in itself or whether you have to establish a foundation for hearsay exceptions. In most jurisdictions, a statement made for the purpose of getting medical treatment is considered an exception to hearsay.
Again, the simplest process for admitting medical evidence is serving the medical entity with a subpoena and obtaining a certified copy of the records. It is always important to check your jurisdiction’s rules to make sure you are completing all the necessary steps to admit the records in your jurisdiction. Also, remember to keep in mind HIPPA regulations.
Custody evaluators will often try to put together timelines in order to better understand the family and the parents’ relationship with each other and with the children.
In the relationship time line, often included events include: when the parents met; when the parents’ relationship became serious; when the parents began living together; when the parents got married; when the parents first separated; the total number of separations; the date of the last separation; and whether and when couples or family counseling was ever done.
In a parenting time line, the following questions are often asked: What was each parent’s share of custody during the first six months after separation? From the six-month mark to the end of the first year after separation? When were the significant changes in the amount of time each parent had custody over the next two years? What is the current parenting plan the parents are using?
There are certain red flags that mediators and evaluators look for. The evaluator may challenge the parents’ version of the time line and ask whether the other parent might see the time line and relationship in a different way. A parent’s ability to see the situation from the other parent’s perspective is an important part of starting to test his or her grip on the reality of the situation and learning to live constructively with it. Red flags that often appear in the parents’ time lines include: different representations about the existing parenting plans; different dates, particularly the date when the relationship became serious; inability to identify troubling aspects of the relationship even in retrospect, particularly if a similar dynamic is present today; glossing over or dismissal of traumatizing history; and inability to put the situation in perspective by recognizing unresolved issues from childhood or family of origin.
The purpose of the Child custody Evaluation is to assist in determining the psychological best interests of the child. From the court’s perspective, the most valuable contributions of psychologists are those that reflect a clinically astute and scientifically sound approach to legally relevant issues. When making recommendations, psychologists should seek to avoid relying upon personal biases or unsupported beliefs. Recommendations should be based upon articulated assumptions, interpretations, and inferences that are consistent with established professional and scientific standards. Although there is no one right way to conduct a custody evaluation, there are wrong ways. The key is to understand enough about the various standards and procedures that govern custody evaluations in order to identify the right from the wrong and mount an effective cross examination if necessary.
One way to challenge the results of a custody evaluation is to question the qualifications of the evaluator. The Specialty Guidelines for Forensic Psychologists require that psychologists who conduct forensic evaluations (of which custody evaluations are included) have specialized knowledge, skill, experience, and education in the areas necessary to perform the evaluation. Even more specifically, the Guidelines for Child Custody Evaluations in Divorce Proceedings and the Model Standards of Practice for Child Custody Evaluations indicate that custody evaluators should have specialized knowledge and training in performing psychological assessments of children, adults, and families as well as education, experience, and/or supervision in child and family development, child and family psychopathology, and the impact of divorce on children. A good place to start is to obtain a copy of the psychologist’s curriculum vitae. From the vitae, the psychologist’s training and experience working with children and families and evaluating children and families for custody purposes can be determined. If the psychologist cannot cite any references, this can be used to criticize the psychologist’s overall knowledge in the specific areas about which he or she is forming opinions and making recommendations. The number of custody evaluations that the psychologist has conducted also is a question that should be asked in order to determine the psychologist’s qualifications and experience.
At a minimum, a custody evaluation should involve both parents, the minor child(ren), observations of the parent-child relationships, and contact with relevant collateral sources. If an evaluator does not evaluate both parents and the child(ren), he or she cannot and should not make recommendations about custody or time sharing. In order to cross examine an adverse psychological witness properly, it is essential to review all of the notes and information collected during the evaluation. The purpose of reviewing the notes, of course, is to find any errors in the information or lack of specificity in the notes.
Although psychological testing is the part of the evaluation usually most foreign and confusing to attorneys, knowing some basic information about psychological testing can be helpful in both preparation and cross examination. Validity, reliability, and a strong research base are important factors in the selection of psychological tests in forensic cases. Therefore, if the tests selected by the psychologist lack validity, reliability, or an adequate research base, this can lead to a very successful attack on the test results and possibly the ultimate opinions offered by the psychologist. Whenever financially feasible, a psychological consultant should be hired. A psychological consultant can obtain the actual test data, re-score it to make sure it was scored and interpreted correctly (many times it has not been), provide consultation, elaborate on the strengths and weaknesses of the overall evaluation, and assist in preparing for deposition or trial questioning of the custody evaluator.
The best way to avoid a bad or unfavorable custody evaluation report is to plan the custody evaluation carefully by including referral questions in the court order and by carefully selecting the custody evaluator. It is also important to inform yourself about what and what not to do when going through a custody evaluation. However, sometimes even with the best planning, a bad custody evaluation report occurs.
Always make notes of discrepancies and/or omissions, as attorneys can point these out to the custody evaluator and he or she may be willing to amend the custody evaluation report. The discrepancies must be significant and verifiable for the custody evaluator to make revisions to the custody evaluation report. Also, be sure to check the Custody Evaluation Guidelines. The American Psychological Association has established guidelines for custody evaluations. Have the Custody Evaluation reviewed. Experts in custody evaluations will be able to review custody evaluation for methodological flaws including signs of bias, failure to follow established guidelines and gaps in data. In addition to receiving a copy of the custody evaluation, be sure to receive a copy of the custody evaluator’s curriculum vitae. The latter is very important because all too often professionals conduct custody evaluations without the proper training.
An expert’s report or testimony should not be all of your evidence, but just one key piece. It can often be used to show “why”—-Why someone is not an ideal parent and will likely remain that way or why an allegation may have been true but is no longer. It adds credibility or bolsters what may be otherwise a bare allegation or a he-says she-says situation.
Remember, custody determinations are often the most difficult decisions for judges, and they will rely heavily on expert’s opinions so know your expert’s expertise. Do they specialize in children or adults? Are they knowledgeable and capable of recognizing abuse settings? Do they have any particular tendencies in their recommendations? Be prepared to attack weaknesses in your opponent’s evaluation and to highlight the strengths of yours. This can be as simple as knowing whether the expert was appointed by the court or hired by the opposing party. Is the expert rattling off field specific terminology that sounds dire but really has little application to the relevant legal standard? Make sure your expert knows the law of the jurisdiction and highlight when the opposition does not.
Ultimately, a good custody evaluation report should focus more on the data that formed the basis for the opinions rather than psychological theory and excessive jargon. The report should clearly present the evaluator’s opinions and recommendations as well as the basis for these opinions and recommendations. In doing so, it should include a description of all of the data relied upon in the evaluation, including parent and child interview information, test results, parent-child observations, collateral source information, and whatever records were reviewed and relied upon. If any of these essential parts are lacking within a custody evaluation, it can create a question of the accuracy and thoroughness of the evaluation and it should be questioned.
Whether there is one consultant or two, expect the attorney’s and consultant’s critique of the report and case file to cover the following:
- Is the report complete? Is there a significant flaw?
- Was the evaluation process conducted sloppily?
- Are identified weaknesses probative? Do they demonstrate unreliable conclusions?
- Were interviews with parents conducted in a balanced manner? Were they neutral, unbiased and sufficiently in-depth so each parent could respond to other parent’s views? Did the evaluator ask each parent the same questions?
- Were interviews with the child age-appropriate, development-appropriate and sufficiently in-depth to glean the child’s moods and relationship with each parent?
- Were case records and evaluation data properly integrated?
- Were collateral informants reviewed fairly? Were essential collateral informants contacted? Did the evaluator explain why certain collaterals were not contacted (redundancy, unavailable)? Was a log kept of phone and in-person contacts?
- Was data properly analyzed in forming conclusions and recommendations? Were multiple hypotheses considered?
- Was case data properly integrated into the report?
- Were recommendations logically connected and consistent with the data? Was any conclusion supported with inadequate or insufficient data? Did the evaluator choose only the data that supported a conclusion?
- Did the evaluator get the important facts correct? A significant factual error could render the evaluation useless.
- Is there any indication that the evaluator was biased, prejudiced or discriminated?
Did the evaluator misrepresent test results or incorrectly score a test?
d. Vocational and Lifestyle Experts – Top Questions to Ask
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. You 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. Your 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.
Don’t worry about studying or preparing for this evaluation. As noted above, you cannot pass or fail the tests. It would be helpful for you to bring a copy of your resume (it does not have to be current) or, if you do not have a resume, be prepared to discuss your educational background and work history in detail. If you are in a training program, bring all relevant details such as a description of the program, costs, length of the program, etc. If you are in the job search process, bring a written record of your efforts. In fact, it is strongly recommended that you keep a written record of all job search related activities. Bring any relevant information such as medical reports to the evaluator. It is important that you answer the questions as honestly and completely as you can. Your attorney will guide you as to whether or not you volunteer information. Be on time to your appointments and cooperate with the evaluator as your attitude will be noted in the report.
You have the right to a fair and impartial vocational evaluation and to be given the opportunity to review all test results. If you disagree with the examiner’s conclusions, you have a right to have the report examined by a second evaluator. There is no confidentiality in this process, so anything you say relating to employability can be reported on and used in forming conclusions.
This process can be viewed as an opportunity for you to learn more about yourself from a vocational perspective. It also provides an opportunity for you to expand your occupational knowledge and learn about careers that might interest you and fits your particular needs, skills, abilities and interests.
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.
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 “there 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 “the 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.
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Wheaton v. Wheaton, 1997 WL 117568 (Va. Ct. App. 1997).
G.V.W. v. L.M.W., 785 So. 2d 533 (Fla. Dist. Ct. App. 2001).
National Legal Research Group, Inc., Earning Capacity and Spousal Support: The Uses and Abuses of Vocational Evidence in Divorce Cases, Divorce Source, (2001), http://www.divorcesource.com/research/dl/evidence/02dec213.shtml/.
Hogan v. Hogan, 796 S.W.2d 400, 405 (Mo. Ct. App. 1990).
Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186, 1204 (1993).
Foreman v. Ketchum, 1999 WL 1129731, at *5 (Va. Ct. App. 1999).
National Legal Research Group, Inc., Earning Capacity and Spousal Support: The Uses and Abuses of Vocational Evidence in Divorce Cases, Divorce Source, (2001), http://www.divorcesource.com/research/dl/evidence/02dec213.shtml/.
Milner v. Milner, 288 N.J. Super. 209, 672 A.2d 206, 209 (App. Div. 1996).
McHugh v. McHugh, 702 So. 2d 639, 643-44 (Fla. Dist. Ct. App. 1997).
National Legal Research Group, Inc., Earning Capacity and Spousal Support: The Uses and Abuses of Vocational Evidence in Divorce Cases, Divorce Source, (2001), http://www.divorcesource.com/research/dl/evidence/02dec213.shtml/.
Evans v. Evans, 559 N.W.2d 240, 248-49 (S.D. 1997).
Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996).
Moorehead v. Moorehead, 745 So. 2d 549, 551 (Fla. Dist. Ct. App. 1999).
In re Marriage of Huff, 834 P.2d 244, 252 (Colo. 1992).
Carter v. Carter, 901 S.W.2d 906, 909-10 (Mo. Ct. App. 1995).
