by Georgia Lord
Georgia Lord Law
DeKalb Superior Court Judge Clarence Seeliger and Certified Rehabilitation Counselor Dr. Silvio S. Reyes presented helpful information regarding the litigation use of vocational experts to those attending the October 6th, 2016, Breakfast Meeting of the DeKalb Bar Association’s Family Law Section. Dr. Reyes previously worked as a vocational expert for the Social Security Administration.
He explained that a vocational expert can be used to prove whether an individual can work and what they can be expected to earn from that work. The expert can also help to identify the types of positions in which a particular individual who has been out of the labor force may be able to find employment. In recent years, divorce courts have been increasingly unwilling to rely upon the speculation of the parties involved regarding their future earning capacity. A vocational expert can use vocational testing and labor market research to offer an objective, professional assessment of the parties’ employability and earning potential. The expert can also provide critical assistance in situations in which a spouse has been underreporting income: e.g., a circumstance in which a self-employed individual has set an artificially low salary for himself. Dr. Reyes noted that the fact that an individual is receiving Social Security disability benefits does not mean they are unemployable. The vocational assessment typically focuses on earning capacity, and does not review relevant rates of unemployment in the proposed line of work or make any determination regarding how likely a particular person is to obtain a job.
Judge Seeliger described some of the testimony he has found most and least helpful regarding a divorcing spouse’s future earning capacity. He said that he finds tax records the most helpful evidence. Information regarding the party’s level of training is also key. A vocational expert can be very helpful on the question of earning capacity, he said. In some cases he has provided for a limited period of alimony, to enable a nonworking spouse an opportunity to obtain the additional training or experience needed to realize their potential earning capacity. He also must consider whether the party will be able to find a job in the then-existing labor market, though, he thought. He noted that he has had many cases in which self-employed individuals have not filed tax returns, and it can feel like he is forced to make a “best guess” regarding their likely income. It is helpful when counsel can persuade their clients to focus their testimony on what the court needs to know, he said, as opposed to allowing them to copy the style of testimony they hear on Judge Judy.
It is helpful when . . . clients . . . focus their testimony on what the court needs to know . . . [and not] to copy the style of testimony they hear on Judge Judy.”
The section’s sponsor spotlight featured Lisa Lubar, a Merrill Lynch Financial Advisor and Certified Divorce Financial Analyst. Lisa used an illustrative example to explain precisely how decisions such as whether to retire before or after your wedding, and where to live with your new spouse, can have a very significant impact on the rights of the new spouse – and even on the new spouse’s access to very key information. She noted that if one fiancée is financially savvy regarding these implications, it would also be wise for the other fiancée to have someone equally strategic in his or her corner.
Section Chair Alice Limehouse chaired the meeting. Section Vice-Chair Dawn de Klerk introduced the speakers and moderated their discussion, and Section Treasurer Charlie Bailey introduced the sponsors. Judge Christopher McFadden of the Georgia Court of Appeals attended.