- A spousal support case presents the family law practitioner with one of the most dangerous challenges a practice has to offer. Why?
Generally, spousal support is an area where the trial court has a great deal of discretion, not only to assess witness credibility, but in applying a variety of less than objective statutory factors to reach a conclusion. Unlike child support, few states have hard and fast guidelines for spousal support. This is not to say that judges don’t have ideas about minimum and maximum ranges, but there is little by way of official standards to guide the way. What does this mean to the lawyer trying the support case? It means that preparation must be more extensive to cover every possibility, rather than working to populate the record with numbers that will be made part of a formulaic calculation.
Where does trial preparation begin? It begins the first time you have a discussion with your client about spousal support. The preparation includes making sure you are well versed in your state’s statute as well as the practical ways judges in the jurisdiction apply the statute. If your state, like many, entitles a spouse to support in an amount sufficient to enable the spouse to maintain his or her marital lifestyle, be prepared to explain to your client that where available funds won’t allow for both spouses to do so, courts make adjustments. While this might not seem like trial preparation, setting reasonable client expectations is as much a part of trial preparation as analyzing the evidence. Trying a case is tough enough, but doing so in the face of a client who has unrealistic expectations based on what Internet sources say about the statute, escalates trial stress geometrically.
Without getting state specific, most jurisdictions expect evidence in spousal support cases to include both qualitative and quantitative components. In collecting facts about both from the client, emphasize the need for specificity, stress the importance of backup documentation, and explore the existence of corroborating witnesses to eliminate credibility contests. When clients express frustration at the detail they are asked to provide, remember that for them the rules of evidence are usually a bizarre exercise in frustration. Find a way to explain what foundation is so that they can connect the dots to understand that you keep asking when conversations took place, who was present, and what was said for a reason, other than doubting what they say. Do not shy away from making clients do what is necessary to fully prepare the case and tell them that they need to prove their case to you before you can prove it to the court or to the jury.
Before inundating the trier of fact with financial documents and lists of income and expenses, build a framework for the financial story of the life the parties have lead, both to earn the money to be used for support and to spend it. This gives the numbers a context. Whether the theme is that despite the marriage one party lived a more costly lifestyle than the other or that spending immediately prior to the divorce was the first year of prosperity or that eviscerating assets to pay living expenses cannot continue—the story is the outline you then fill in with numbers.
Most jurisdictions require some type of affidavits of income and expenses and/or court-ordered disclosure that covers not only income and deductions and expenses, but also assets and liabilities. Many jurisdictions now have court-promulgated forms on which to detail income, expenses, assets, and liabilities. With most requiring a signature under oath, these documents take on additional significance at trial, in particular, as admissions.
Be sure that you cannot be accused of misleading the court by having one-time expenses or estimated expenses noted for the court. If you are using replacement costs for cars based on a pattern of purchasing new vehicles, list the calculation used. Go through expenses to eliminate those that are obsolete, such as preschool costs for a child who is now in the first grade. As you develop figures for expenses, keep a running memo of how the client developed each number so that he or she has a point of reference if memory fails at a deposition or trial.
Do what works for the client to develop the numbers and consider that in some cases the client needs to work with an expert so that there is a competent witness to testify if the client tells you that the room spins whenever he or she looks at the bank statements. Whether you are advancing the claim or defending against it, having your own analysis and understanding any analysis done by the other side are equally important. Be able to highlight the differences between the two. For example, in the family where the earning spouse deposits money into a separate checking account for the nonearning spouse and then tries to argue that the nonearning spouse’s needs are portrayed by the traffic in that separate account, even though that account doesn’t show payments made from other accounts that provide for lifestyle expenses, the decision-maker needs to know the difference.
Ability to Pay
The other part of the economic equation is, of course, ability to pay. Although admitting income tax returns and financial statements supplies skill-building for the lawyer, it is not engaging for the court. Unless there is a document that you are going to introduce in an “ah-hah” moment to impeach a lying witness, the more documents you can admit using requests-to admit facts and genuineness of documents or stipulations, if not to admissibility then to authenticity, the less trial time you will need. If it is not the kind of case where you need experts to opine on the sources of income, deductions, and cash flows, then tie the components from the various documents together with summaries that will have impact. For example, if you intend to prove that the earning spouse is understating net income by inflating deductions from income, create a pro forma disclosure form or income affidavit and be able to tie each fact in the demonstrative exhibit to a piece of evidence and work those citations right into the summary. This way you hit the trier of fact on both auditory and visual levels.
When completing the income-and-deductions portion of any affidavit or court form, be sure that if you are simply using the figures for deductions from a pay stub, they are not susceptible to accusations of overwithholding. An easy sniff test for over-withholding is checking the personal tax returns for consistent refunds. Other options include using a computer program to calculate the figures using input for both income and itemized deductions and then comparing them to the figures on the pay stubs. No matter what method you ultimately use, do not be afraid to use annotations, footnotes, or endnotes to explain items that might otherwise be taken in a variety of ways by a court. For example, if you average income that includes one-time bonuses into one monthly figure, you might overstate actual monthly cash flows, but if you leave out uncertain sources of income, such as bonuses or end-of-year distributions of profits, you could be accused of understating income.
Have case law and statutory citations ready on points, such as formulas that apply, how many years of expenses are relevant, what is and is not income for spousal support purposes, and the bases for imputing income in your jurisdiction. To the extent either party has a significant other or new spouse, be ready for any ways in which these individuals can affect the available arguments or the right to support itself. Educate the client at the start of the case about whether moving in with another person, from a significant other to a roommate, can terminate the right to receive support. Be on top of the types of support the trier can award: permanent, rehabilitative, reviewable, and know for which you are arguing and how to play to the elements in support of the award you want. With the ever-expanding breadth of portable computer resources, keeping case lists by topic that you can open to argue relevance or other objections eliminates the need to reinvent the wheel with every case. Instead, make it a point to post new cases to the lists right when you read them.
In jurisdictions where the likelihood is that the support issue will come back before the court, know what needs to be in the record to help the court state the criteria for a review. If the difference between reviewable and rehabilitative support for the payee spouse will depend on the prognosis for or absence of employment opportunities, consider having a vocational expert to fill in that gap.
Any results you generate with computer programs, whether for tracking expenses or for calculating income and cash flows, require careful thought to be sure that all of the underlying evidence makes it into the record since your printout is, at best, a demonstrative exhibit unless it is part of an expert’s opinion. There is nothing better than a set of well-organized, comprehensive demonstrative exhibits to tie together facts found in a wide variety of trial exhibits and/or testimony. A must-have exhibit for any spousal support case where computer programming is used to do support calculations is an exhibit that ties each source of computer input into evidence at trial. No matter what the program, create an exhibit that tells the judge where in the record he or she can find the values you input in order to generate your net income, and/or support calculations. Printouts from the actual support calculation program would also be demonstrative exhibits since they are something you create, rather than something created elsewhere that you mark and admit into evidence.
In deciding what you will ask for, by way of relief, stay mindful that triers of fact appreciate solutions. Work through support options based both on findings of fact that you will advocate and those the opposition will advocate. Have definite positions on the numbers, but in closing, weave them together with the story of the marriage to give them life and meaning to the party you represent and his or her life going forward.
Published in Family Advocate, Vol. 34, No. 3 (Winter 2012), p. 24–26. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.