On February 4, 2015, Family Law attorneys of all ages and years of expertise gathered at the Courthouse to hear Thomas Ries, Esquire and Judge Vicki Ballou-Watts give their “best practice” tips for trying an indefinite alimony case. Those who attended were not disappointed, as the speakers explained how to try a case from discovery to closing arguments.
Here are some of the helpful tips and pointers shared with attendees.
- Make an opening statement to preview the story, facts and evidence. The opening statement should provide the theme of the case, and help the Judge to link the theme to the evidence. Knowing the theme of the case assists the Judge in ruling on objections pertaining to relevance. Waive or reserve on an opening statement with caution, as unless the case is specially assigned, judges only review the file the night before trial, so they are not as intimately familiar with the case as the lawyers are.
- The party seeking alimony bears the burden of proof. The lawyer representing the party seeking alimony should present evidence that addresses every factor under Family Law §11-106, whether through testimony, documents, or expert witness.
- If your theory of the case is that your client should receive indefinite alimony due to a disability, make sure to read Hiltz v. Hiltz, 213 Md. App. 317 (2013) very carefully for a discussion on the burden of proof.
- To demonstrate earning capacity, consider using evidence such as past and present employers in the field, personnel records from prior employers, and the party’s resume. If you need a vocational expert, the most useful expert is one that can testify about vocational aptitudes and qualifications, job availability, pay ranges, and average job search time in the subject area.
- When presenting your client’s Maryland Rule 9-203 Financial Statement, keep in mind “actual expenses” versus “actual needs.” Family Law §11-106(b)(11) says that the Judge must consider the parties’ “financial needs” when evaluating a claim for alimony.
- The Financial Statement is not meant to be a wish list. Future needs can be included in the budget, but once a few “wish items” are disproved, credibility becomes an issue.
- Presentation of lifestyle is an essential component to the case. An attorney may want to consider hiring a bookkeeper or accountant to prepare an analysis of the family bank account records and general spending habits prior to the separation to show lifestyle and standard of living.
- There is an excellent discussion on “fault” in the context of indefinite alimony in the concurring opinion by Judge Adkins in Simonds v. Simonds, 165 Md. App. 591 (2005).
- Evidence of tax consequences of alimony should be presented to the Court. It is recommended to consult with an accountant or tax expert to properly prepare the testimony and an exhibit setting forth the tax effect for both the payee and payor.
- Closing argument is the lawyer’s opportunity to present the strengths of the case and persuade the judge that your client’s position is supported by evidence and law. Focus on what you believe will be the Judge’s preferences regarding alimony, and then use the statute and case law to emphasize those factors in your client’s favor.
Family Law 101 is a five-part series program, so if you missed this session, you can still catch the remaining ones:
April 1, 2014 – Trying a Martial Property Case: William P. “Sam” Englehart, Esquire and Judge Michael J. Finifter
May 6, 2015 – How to Try or Defend an Attorney’s Fees Argument in a Family Law Case: Craig P. Ward, Esquire and Judge TBA
Many thanks to our speakers and to Mary R. Sanders, Esquire for coordinating this wonderful program!