Thursday, May 9, 2013

Using Experts For Determination of Spousal Support And Property Division

Vocational Experts: Determination of Voluntary Underemployment
At times it is prudent for a vocational expert to evaluate your spouse’s earnings capacity in the current job market. If your spouse has educational and/or professional background applicable to particular employment opportunities, a vocational expert can evaluate your spouse’s current earnings ability related to available jobs advertised in the local market. When a spouse has voluntarily left the job market, chosen to not work or voluntarily left one job for a lower paying job, the court will often be unable to impute (assign, give offsetting credit for, etc.) the spouse’s earnings capacity in the current job market, beyond minimum wage. When your spouse has work related education, training and/or employment experience you want to be able to present evidence that enables the court to appropriately impute your spouse’s earnings ability in the current local market.
Courts listen to vocational experts. If their testimony is credible, the underemployed spouse’s imputed income may be substantially greater than minimum wage and your  current income will be offset by your spouse’s imputed earnings ability. An engineer who has voluntarily left the engineering field to follow the dream of being a massage therapist or a nail tech, may for example, be evaluated for current earnings capacity and placement ability in the current engineering job market versus the massage therapy or nail tech market, without the requirement of any retraining. In some cases, a spouse’s imputed income can be double or triple their current actual earnings. Without the testimony of the vocational expert the judge may only be left to speculate. Speculation can lead to imputation of earnings at minimum wage.
          The expert report will detail vocational assessment of earnings capacity in light of available jobs in the current market. The general procedures for conducting a vocational assessment consist of:
A review of background information; a vocational interview; testing if appropriate; an analysis of work history; an analysis of transferable skills from the work history;  educational background; psychological and/or medical issues; and, current labor market information.

Sample vocational expert credentials: 

Ph.D. Vocational Rehabilitation.

M.Ed. Rehabilitation Counseling.

Certified Rehabilitation Counselor

Sample Memberships and Designations:

Diplomate - American Board of Vocational Experts (ABVE) 

Fellow - American Board of Disability Analysts (ABDA)

International Association of Rehabilitation Providers (IARP)

National Rehabilitation Association (NRA)

Vocational Evaluation and Work Adjustment Association

National Association of Service Providers in Private Rehabilitation

Southwest Ohio Self-Insured Association

Ohio Rehabilitation Association 

Southwest Ohio Rehabilitation Association
Sometimes it is prudent to move the court for an order that a spouse cooperate with the vocational expert (or business valuation expert described below).

Business Valuation Experts

A business started during a marriage is technically marital property. When such a business is clearly the enterprise of one spouse, and the business is laden with debt, the majority of the debt may be allocated to the spouse who is directly involved with the business. When the business has substantial equity, the court must determine a reasonable allocation of the equity between spouses.

It may be prudent to employ an expert to value the equity of the business. Such experts are expensive, but, proceeding with an unrealistic idea of what you think your share of your spouse’s business’s equity might be can be even more costly. The court needs credible testimony presented from someone qualified to value the equity of the business. Speculation does not serve that purpose. Introduction of quick books records, product inventory records, accounts receivable records, pay pal records, office equipment inventory records, business real estate records, payroll records, etc., may not be weighed as credibly as a business valuation expert’s testimony.

Some businesses produce substantial income for a spouse but have no equity. A dentist, for example, may earn a six-figure income from the practice, but, the equipment, building and supplies may be so heavily financed that the practice itself has no equity. Income generated from a business may not be realized in the equity of a business.
Business valuation experts can report on such matters as:

Fair market value: the price a willing buyer pays a willing seller;
Liquidation value: the net amount an owner could realize if the business is terminated and the individual assets are sold off.

Even the good will of certain businesses may hold some equitable value.

Sample related certifications: National Association of Certified Valuation Analysts; (NACVA); and the American Institute of Certified Public Accountants (AICPA).
Lay Witnesses: Marital Home

            Appraisers v. Realtors

            Equity or “negative equity” (more indebtedness than value of home) requires a showing of what the home may sell for in the current market. Courts may weigh the testimony of a licensed real estate agent as favorably as an appraisal, as long as the marital home’s market value is properly detailed. A realtor’s testimony regarding what comparable homes have sold for, supported by proper documentation (multiple sales listings, auditor’s records available at websites, etc.) may suffice.

Matters to consider regarding disposition of marital home:

When the marital home is shown to have equity in the current market, the equity will be allocated by the court between spouses. One spouse may pay the other spouse the amount of equity allocated to her/him. The compensated spouse will be ordered to quit claim deed whatever interest the spouse has in the marital home. The spouse keeping the marital home will be ordered to remove the other spouse from any debt obligations (mortgages, lines of credit) within a period of time agreed upon by the parties or set by the court, in exchange for the quit claim deed. The home may also be sold and the equity or debt may be divided between the spouses according to court allocations or by agreement between the parties.

Do not forget to inquire about credit for "Reduction of Principal". During divorce proceedings, when only one spouse has made monthly mortgage payments from the date the parties separated, that spouse may receive credit ("offset") for the amount of reduction of the principal balance during that time. Each month your equity is increased by the amount your principal balance is reduced.

            When the marital home is shown to have no equity in the current market, or negative equity (more loan balances than market value), one spouse may elect to keep the marital home. The other spouse would quit claim deed any interest in the home and be removed from the home’s debt obligations by the spouse electing to keep the home. Provided appropriate language is included, a certified copy of a final Decree of Divorce, Dissolution or Legal Separation may act as a transfer of such property. 
Sample Transfer Language:

If Wife fails to convey all right, title and interest to this real estate according to the order of this Court, this order shall constitute and operate as such conveyance and the Auditor and Recorder of Warren County, Ohio are hereby respectively authorized and directed to transfer and record same, for a public record of such conveyance. The property is legally described as follows:




PARCEL NUMBER: 16-22-141-002.
This Agreement may serve as a complete conveyance of any claim of dower Wife may have had regarding the aforementioned real estate.

Expert Witnesses:  Disclosure Requirements

ORC § 2317.38. Notice of intention to offer report

The report or finding mentioned in section 2317.36 (expert report) of the Ohio Revised Code is not admissible unless the party offering it has given notice to the adverse party a reasonable time before trial of his intention to offer it, together with a copy of the report or finding, or so much thereof as relates to the controversy, and has afforded him a reasonable opportunity to inspect and copy any records or other documents in the offering party's possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based.

Sample Domestic Relations Court Local Disclosure Requirements (Warren County Domestic Relations Local Rules):

3.6 Expert Witnesses

A party may not call an expert witness to testify unless a written report has been procured from the expert and forwarded to opposing counsel. It is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the expert's opinion. Unless good cause is shown, all reports must be supplied to opposing counsel no later than thirty days (30) days prior to trial. The report of an expert must reflect his or her opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in his or her report.

Absent extraordinary circumstances, all experts must submit reports. If a party is unable to obtain a written report from an expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the court and opposing counsel of the name and address of the expert, the subject of the expert's expertise, together with his or her qualifications, and a detailed summary of his or her testimony. The court shall have the power to nonetheless exclude the testimony of the expert if good cause is not determined for the absence of a report.