General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
Domestic Relations Law
Trial Preparation Options in the Alimony Case
By Thomas C. Ries
You have interviewed your client to learn as much as you can about his or her personal life, lifestyle, and the family’s financial circumstances. You conducted discovery and obtained documents relating to each party’s assets, liabilities, income, and expenses. You have diligently paid attention to every factor set forth in your state’s alimony statute. You have retained and prepared expert witnesses. You have rehearsed your client’s testimony. Now you must ensure an effective presentation of the alimony issue at trial.
The Opening Statement. If the court in your jurisdiction permits you to do so, always give an opening statement. Generally, you should include a history of the marriage and tell the court about your client and the opposing spouse. This may be particularly important if marital fault is an issue and is a factor for the court to consider in awarding alimony. Identify factors that are strongly in your client’s favor and use the history of the marriage to lay a foundation in support of your client’s request for an alimony award. Educate the court regarding facts that are undisputed or to which you do not anticipate any dispute, as well as those issues that have been resolved. You can then describe the facts and issues in dispute, presenting your client’s position on each.
If you represent the spouse who is defending against a request for alimony, consider reserving your opening statement until the conclusion of the opposing spouse’s case. By postponing your opening statement, you gain the advantage of hearing all of the opposing spouse’s evidence before you present an organized case in rebuttal. On the other hand, this could be a dangerous strategy if the opposing spouse seizes the opportunity to persuade the court to view evidence his or her way early in the proceeding.
The First Step. Identify the relevant and appropriate facts that should be emphasized to the court. Although every case is different, there are certain factors all courts must consider, such as the payor’s ability to pay and the recipient’s potential income and needs. In many cases the payor’s income and ability to pay alimony are set forth on income tax returns, W-2 forms, and periodic pay stubs. If your presentation will be complicated by income from self-employment, rental property, or partnership interests, consider hiring an accountant to prepare a detailed analysis of each party’s true monthly cash flow and disposable dollars.
Through the use of interrogatories, depositions, and other discovery tools, you can often establish facts that are directly relevant to a party’s employability. Viewed separately, certain background facts may seem relatively unimportant; but together they can prove your point. Consider, for example, the following areas of inquiry into a party’s background; (a) age, (b) health—both physical and mental, (c) education, (d) training and experience, (e) employment history, (f) skill level of past work, and (g) recent efforts and applications for employment. Numerous lay witnesses may testify to a party’s ability to work and his or her earning capacity. There are times, however, when you need an expert’s assistance and testimony. Unless the party is too old to work or suffers from a significant disability, his or her anticipated ability to work may be a major factor in the court’s determination of the alimony issue. Absent obvious age or disability impediments, if you represent the party from whom alimony is requested and the other party claims to be unable to work (or if it is believed that the party is deliberately underemployed), consider using a vocational rehabilitation expert.
If you represent the unemployed (or underemployed) party, you will need experts to present your client’s case in chief and testify regarding the potential for employment. The most useful expert will be one who can testify not only about vocational aptitude or qualifications but also about job availability, pay ranges, and average job search time in the subject area. Emphasize the expert’s objectivity and independence.
Determining Needs. Encourage your client to prepare a monthly budget or expense list. Many attorneys use a form or checklist as a starting point for the client to review. Some jurisdictions have court-approved or court-required financial statements or affidavits for use as exhibits in alimony cases. Make sure you comply with such requirements.
Do not allow your client to submit a budget based solely on average monthly expenses incurred during the parties’ separation. Actual expenses often do not accurately reflect actual needs, especially when your client’s needs are based on the history of the family’s lifestyle and standard of living. The parties now have expenses for two households. It is essential that you maintain the distinction between "actual living expenses" and "actual needs."
Not a Wish List. Future needs must also be included in the budget. You must work with your client to ensure that the budget reflects his or her actual needs rather than a wish list. Credibility is always an issue, and if a few wish-list items can be disproved, all of the numbers become suspect.
Demonstrative evidence can enhance oral testimony and emphasize certain facts while simplifying them for the court. An informative, carefully designed chart can have a significant impact on the court, but don’t overdo it. Identify the most important information you need to convey; be creative and put it in a form the judge can read. These are "special demonstrative exhibits," not simply the monthly budget, recent pay stubs, and the statement of assets and liabilities.
If you represent the party seeking alimony and there is a significant disparity between the parties’ incomes, emphasize that point by preparing a comparative income chart and corresponding graph.
Proving Lifestyle. Perhaps the easiest method of establishing lifestyle and standard of living is through photographs of the marital home and furnishings, jewelry, or family vacations taken over the years. Review the parties’ spending habits for clothing, dining out, household help, recreation and entertainment, jewelry purchases, and charitable contributions. When appropriate, have an exhibit prepared that details the parties’ spending habits for these types of expenses. Have an accountant prepare an analysis of the family’s bank records and general spending habits prior to the separation. This analysis can be reduced to chart form and will make a very telling exhibit.
Tax Issues. When you represent the payee, the income tax consequences of deductible alimony payments must be presented to the court. Consult with an accountant or other tax expert to prepare the testimony and an exhibit that clearly sets forth the tax effect on your client (payee) and the after-tax cost to the other party (payor). There is often a range of reasonable expectations regarding the anticipated alimony award. Have the accountant prepare tax computation charts illustrating each party’s income from all sources before and after various hypothetical alimony payments.
Closing Argument. Emphasize the strengths of your client’s case and persuade the judge that your client’s position is supported by the evidence and the law. While making certain that your client’s request is reasonable, focus on what you believe to be the judge’s preferences regarding alimony. Just as you did in preparing your opening statement, review the alimony statute or case law in your jurisdiction and emphasize the factors in your client’s favor. You must summarize for the court how specific evidence relates to the factors set forth in your state’s alimony statute.
Thomas C. Ries is a principal with Rosenthal, Kaufman & Ries in Baltimore, Maryland.
This article is an abridged and edited version of one that originally appeared on page 37 in Family Advocate, Fall 1996 (19:2).