If My Spouse Refuses to Work to the Best of Their Ability, How Should My New Jersey Divorce Lawyer Prepare for Trial?
One fact that has not changed in my 20 years of being a lawyer in the filed of divorce law here in New Jersey; only approximately 2% of divorce cases in New Jersey actually go to trial. However, any diligent and zealous attorney understands that we must be prepared to proceed with trial, just in case we fall into that 2%. In this divorce, the wife was “voluntarily underemployed.” This is a term used primarily by attorneys and family court judges. It simply means that the spouse in question refuses to earn income to their fullest capacity. When this occurs, my associate lawyers and I hire an Employability Expert.
Following, please find the outline of questions that we prepared for this divorce trial. Names have been deleted and most of the facts have been changed. Here, you shall find that I focus on the wife’s ability to work, including her educational background and past earning history. I then walk our expert through her report. I then anticipate questions that I believe will be important when I took cross-examination of this litigant. Enjoy!
(Direct Examination of Wife – Job Search/Employability Only)
1. Please state your name and age for the record.
2. Isn’t it true that the complaint in your divorce was filed approximately three (3) years ago?
3. Isn’t it true that you have been separated from your husband for approximately four (4) years?
4. In the four (4) years since you separated, isn’t it true that in the 2011-2012 academic year you only worked one (1) HALF of a day as a substitute teacher? (See P-36)
5. And isn’t it true that you received income of $37.50 for that one-half day of work as a substitute teacher?
6. And isn’t it true that you only received regular part-time employment in or about October 2012?
7. And that employment is at the Disney Store, correct?
8. And you only work approximately 20 hours per week, correct?
9. And you earn $11.50 per hour, correct?
10. And isn’t it true that you refuse to accept hours during which you are with the children?
11. Isn’t it true that you sent your husband a text message in December 2012 stating the following: “I hate to have to ask this, but can you take them to new years day mass. I know the whole reason i braved that horrid storm the other night was so that you wouldn't lose time with them due to dropping them here for mass new years morning. My manager at the outlets was out sick all week so she did the schedule for next week from home as a result she didn't have my parenting schedule handy consequently she schedule me for Tuesday, January 1st from 10am to 3pm - and after the way she has been shorting my hours for weeks and then giving none at all this week i have to take that shift. Assuming i get out on time which i should, i would be home by 3:30ish.” (See P-151)
12. Isn’t your youngest child nine (9) years old?
13. Isn’t aftercare available at her school?
14. You previously worked as an accounts payable/receivable clerk, correct?
15. You also previously worked as a computer programmer, correct?
16. Didn’t you previously earn as much as $57,000.00 per year as a computer programmer?
17. Don’t you have a Bachelor of Arts Degree in Mathematics with a concentration in Computer Science?
18. You have not made any efforts to return to computer programming during your four (4) year separation, have you?
19.You have not made any efforts to return to employment as an accounts payable/receivable clerk, correct?
20. You underwent an employability evaluation by Dr. David Goldstein, correct?
21. And didn’t Dr. Goldstein indicate that if you updated your computer programming skills, your entry level salary would be approximately $60,860? (see P-35, page 9)
22. Didn’t Dr. Goldstein indicate that you could earn as much as $64,000 per year as a computer programmer? (see P-35, page 12, last paragraph)
23. Turning your attention to P-170, isn’t it true that you earned a gross total of $2,877.77 from substitute teaching in 2012?
24. Also based on P-170, you earned a total of $1,078.37 from your employment at the Disney Store in 2012, correct?
25. This equates to total income of just under $4,000 in 2012, does it not?
26. Didn’t Dr. Goldstein indicate that you had the capacity to work in either of your prior occupations? (see P-35, page 12, last paragraph)
27. And why have you made absolutely no efforts to obtain employment as a computer programmer over your four year separation?
28. And why have you made absolutely no efforts to update your skills in computer programming over your four year separation?
29. And Dr. Goldstein also indicated that you would be advised to pursue your teaching credentials, correct? (See P-35, page 13)
30. And you have also made no effort to pursue your teaching credentials, correct over your four year separation?
31. And Dr. Goldstein also recommended that you consider the services of a career counselor, correct? (See P-35, page 13)
32. And you have made no efforts to obtain a career counselor, correct?
33. And isn’t it accurate that you have followed absolutely none of Dr. Goldtein’s recommendations?
34. And isn’t it true that you only applied for part time employment at the end of 2012 for the first time during your four year separation?
Dr. Harvey Goldstein, Employability Expert (Direct)
1. Please state your name for the record.
2. Dr. Goldstein, I’ll direct your attention to Exhibit P-34. Do you recognize this document?
3. What is it?
4. Did you create this document?
5. Dr. Goldstein, does this document accurately reflect your education, licenses, certifications, and employment experience?
6. Dr. Goldstein, what is your educational background?
7. What professional licenses do you have?
8. What certifications do you have?
9. Where are you presently employed?
10. What is your occupation?
11. How long have you been a vocational rehabilitation counselor?
12. Have you presented any seminars or had any other speaking engagements with respect to your experience as a vocational rehabilitation counselor?
13. Please state the three most recent speaking engagements you have had.
14. Are the remainder of your speaking engagements accurately represented under the section of your CV entitled Instructional Experience?
15. Have you published any articles, journals or books with respect to vocational rehabilitation?
16. Please state the three most recent.
17. Are the remainder of your publications accurately represented under the section of your CV entitled Publications?
18. What professional organizations are you a member of?
19. Have you served as an expert witness in the past in the Superior Court of New Jersey?
20. How many times?
Move to qualify Dr. Goldstein as an expert witness.
21. Dr. Goldstein, I direct your attention to exhibit P-35 (second page). Do you recognize this document?
22. What is it?
23. I direct you to page 13 of your report. Is that in fact your signature on this report?
24. Did you prepare this in your ordinary course of business?
25. Did you prepare this after meeting with my client’s wife?
26. What employment did you recommend that my client’s wife pursue?
27. On what basis?
28. Are there jobs available in these fields?
29. What salary range could my client’s wife expect to earn in those fields?
30. On what basis?
31. Did my client’s wife ever seek a career counselor referral from you as per your recommendation?
32. What resources did you rely upon in making your recommendations?
33. Based upon your interview and evaluation of my client’s wife, would it be reasonable to expect that she can earn $64,000.00 per year of income?
Wife (Cross Examination)
1. Turn to P-8 – Isn’t this your CIS dated November 1, 2010?
2. Turn to page 6 of P-8 – Don’t you state that your financial needs are $8,473 per month?
3. Turn to P-7 – Isn’t this your CIS dated December 21, 2011?
4. Turn to page 6 of P-7 – Don’t you state that your financial needs are $8,432 per month?
5. Wasn’t your husband ordered to pay you $5,000.00 per month pendente lite effective February 18, 2011?
6. Yet, in December of 2011 your expenses were nearly double the pendente lite support amount, according to your CIS, correct?
7. And, on your December 21, 2011 CIS (P-7), page 9, you state that the joint Chase Mastercard had $30,000.00 of debt, correct?
8. And didn’t you incur all of this debt on the joint Chase card for your counsel fees?
9. So you weren’t charging your alleged deficiency of approximately $4,000.00 per month, correct?
10. So in fact, aside from counsel fees, you didn’t need to spend more than the pendente lite support amount, did you?
11. Turn to P-26 – Isn’t this a document you created on QuickBooks entitled “Min Needed for 3 Months”
a. NOTE – If witness does not recall this document, you can reference her to P-28 which shows screen shots of her Quick Books file opening this report
12. And in this document, don’t you outline all of your total expenses for three months?
13. And turning to the second page of P-26, don’t you state that your overall total expenses for three months is $13,129.51?
14. And, since you have a Bachelor’s degree in Mathematics, I presume you know how to divide, correct?
15. We can make it easy and use a calculator – Isn’t $13,129.51 divided by 3 equivalent to $4,376.50?
16. So therefore, your need, by your own admission is $4,376.50 per month?
17. So you were lying on your case information statements dated November 1, 2010 and December 21, 2011?
18. Let’s turn back to page 10 of P-7 – That’s your signature, right?
19. And above your signature, doesn’t it state “I certify that the foregoing information contained herein is true. I am aware that if any of the foregoing information contained therein is willfully false, I am subject to punishment”?
20. Let’s turn to page 10 of P-7 – That’s your signature, right?
21. And above your signature, doesn’t it state “I certify that the foregoing information contained herein is true. I am aware that if any of the foregoing information contained therein is willfully false, I am subject to punishment”?
22. Let’s turn to P-148 – That’s your case information statement dated September 6, 2012, correct?
23. And on page 6 of that document, you certify as to your current expenses being $4,824.00, correct?
24. So your prior Case Information Statements were grossly inflated, were they not?
25. Now let’s look at your most recent case information statement dated January 9, 2013. Isn’t it true that you list your expenses as $7,412.00 per month?
26. So now you expect this court to believe that you actually have expenses of $7,412.00 when you have been unemployed, having not been imputed an income, and receiving a pendente lite support award of $4,500.00 per month during this litigation?
27. Let’s turn to page 9 of P-148. There you state that the joint Chase Mastercard balance was up to $15,114, correct?
28. Isn’t it true that you alone used this card?
29. Isn’t it true that you used this credit card to pay for legal fees in connection with your divorce?
30. You also list a Macy’s Amex on your CIS, correct?
31. And didn’t you use that to pay your legal fees?
32. You also list a Sears Mastercard on your CIS, correct?
33. And didn’t you use that to pay your legal fees?
34. You had a whole life insurance policy with Met Life valued at approximately $100,000.00, correct?
35. And isn’t it true that you liquidated the cash value on this marital asset to pay legal fees?
36. And isn’t it true that you did so without any discussion with your husband?
37. Let’s turn to page 7 of P-148, you state that you liquidated a Merrill Lynch account which was in joint names, correct?
38. And you used this to pay for your legal fees, correct?
39. And you state that this asset was exempt from equitable distribution, correct?
40. But didn’t you put your husband’s name on the account?
41. And didn’t your husband actually pay fees for this account?
42. And during your marriage, didn’t you sell certain stocks and place those into a joint account?
43. And on your CIS, you claim the balance was approximately $7,400 that you claim you liquidated?
44. Let’s turn to P-37 – Isn’t this a statement for the joint Merrill Lynch account for period ending May 28, 2010?
45. And doesn’t the statement name “Husband and Wife – JTWROS” as account holders?
46. And are you aware that JTWROS is a common abbreviation for Joint Tenants with Rights of Survivorship?
47. And on that statement, isn’t the account balance $9,338.88?
48. And you also have an IRA with marital funds, correct?
49. Looking at P-38, that asset was valued at $7,987.25 as of June 30, 2010, correct?
50. And you unilaterally determined that you would be filing your taxes individually for 2011, correct?
51. And you did so without conferring with Plaintiff, correct? (See P-79 rebuttal if she says no)
52. And you also objected to utilizing the HELOC to support the family during your husband’s period of unemployment, correct?
53. And your husband told you that there was not enough money to cover expenses and assets would have to be accessed, correct?
54. And rather than using the HELOC, you thought that using the retirement accounts would be a better course of action, correct?
55. And you received the email from your husband dated June 2, 2011, marked as P-91, correct?
56. And isn’t it a fact that your husband pleaded with you in that email to use the HELOC instead of retirement assets, correct?
57. And regardless, you still refused to access the HELOC, correct? (See P-136)
58. And isn’t it true that you insisted that the 2010 tax refund be equally shared? (See P-147)
59. Let’s look at P-127. These are your responses to matrimonial interrogatories, correct?
60. Turning to the last page of this exhibit, that is your signature, correct?
61. And by signing this document, you certified your answers were true, correct?
62. Did you prepare this document?
63. Did you review this document for accuracy?
64. Turning to page 20 of this document, question 59 (f) – please read the question and the answer into the record.
65. So your answer to that question is “Unknown – Theresa do you have this information?”
66. So were you asking yourself if you have this information?
67. So did you actually review these answers?
68. Is this information truthful or did your lawyer just guess for you?
69. We established that you received total gross income of $2,952.50 in 2012, correct? (see P-170)
70. You were present in court when Dr. Goldstein testified that you could earn up to $64,000, correct?
71.And during your four year separation, you haven’t applied for any job earning a salary in this range, have you?