Divorce

It’s Nearly Always about the House in Savannah, Georgia

Jason Cerbone · July 14, 2022 ·

Real property interests

Real estate law is related to divorce law. Whether it is the marital home and considerations of exclusive possession, or issues arising from an asset as a source of income, nearly every divorce case requires us to understand our client’s rights and obligations and provide advice and formulate strategies about real property. The form of ownership and basic real estate law can have interesting and significant effects on parties’ rights and obligations. For these reasons, close attention to real property issues is required as we represent our divorce clients.

Initial steps

As soon as the divorce engagement has been formalized and the attorney-client relationship formed I always:

lock down what real property the divorcing parties own;
how the property is titled;
and what liens, claims, and encumbrances affect each property.

My intake questionnaire seeks certain information from the client:

What do you and your spouse own?
Is there a vacation house?
How about rental income?

Those answers begin my roadmap.

The first step is to get a title report on each parcel of real property identified by the client. Real estate lawyers frequently find that the recorded title differs from how the client believes the title is held. A title report will tell you the exact name(s) of the title holder(s) and will provide a formal legal description of their property; a chain of title indicating dates, volumes, and pages of deed recording information; dates and original principal amounts of mortgages; and a list of any other formalized claims against the property. I always ask the title searcher for copies of all salient deeds, common interest documents, and encumbrances.

At the outset, it is useful to think in the context of divorce in either community property or common law states, the manner a client holds title does not necessarily dictate the outcome of property distribution. These systems have differing approaches to which property can be divided between the parties and at what percentages.

Community property states define “community property” as anything other than the separate property of a party brought into the marriage or inherited or received by gift during the marriage. This is generally considered to be all property and earnings acquired after the date of the marriage, except as described above. A community property court has limitations on its discretion and generally must distribute community property equally between spouses, despite the manner in which the property is titled. This result arises from the notion that marriage is the common undertaking of both parties. As well, in community property states, courts have little or no discretion to award a party’s separate property to the other spouse, unless it has been transmuted into community property (usually by commingling).
In common law states, a court generally has broad discretion to consider and apply a variety of equitable factors in fashioning distribution orders covering both premarital and marital assets, however, titled.

Forms of ownership

As you review the title report, you will see that ownership can take several forms. Depending on the manner in which the title is held, an owner has different rights, and our advice will be tailored accordingly. Typically, the title is held as follows: tenancy in common, joint tenants with rights of survivorship, tenancy by the entirety, life estates, and leasehold interests.

Tenancy in common is a form of concurrent ownership in which each owner holds an undivided interest in the property—a shared single right. Interests need not be equal and may be alienated or conveyed without the consent of the other tenants in common. There is no right of survivorship—an ownership interest passes to the tenant in common’s estate or heirs upon death.

Joint tenancy with the right of survivorship is a form of concurrent ownership in which each owner holds an undivided and equal interest in the property. Under common law, joint tenancy requires four unities: interest (matching type of ownership—fee simply cannot be matched with leasehold), title (have to take by the same deed), time (conveyance must occur at the same time), and possession (each tenant has the same rights of possession of the entire property). Specific words of intent must be present to create the joint tenancy with survivorship rights. Upon the death of a joint tenant, that tenant’s interest in the property passes to the surviving tenant(s) by operation of law. Of significant interest to family law practitioners is that divorce may or may not sever a joint tenancy with the right of survivorship, so the prudent approach to ensure termination of a joint tenancy is to make a conveyance of a joint tenancy interest, to avoid the potentially horrible result of an ex-spouse becoming the owner of the other ex-spouse’s interest, post-divorce upon death.

Tenancy by the entirety is a form of concurrent ownership between spouses in which a fifth unity, that of marriage, exists. The trend is away from tenancy by the entirety and toward joint tenancy.

Life estate is an interest in real property in which a grantor conveys property to the grantee (remainder-man) and reserves a life use in the property to the life tenant (the grantor or a third party). The result of the retained life use is that the life tenant, for their lifetime (or some other person’s lifetime), possesses and uses the property, collects rents/income, and pays the costs and expenses of the property. At the end of the measuring life, possession and use pass to the remainder-man. There are significant tax and Medicaid implications—check with your tax and elder law advisors.

Leasehold is an interest in real property created by a lease agreement in which the owner grants use and possession of the property to a tenant for a stated period of time. The terms, duration, and rights of the tenant are described in the lease. A client’s ownership of a leasehold interest as either landlord or tenant can translate into measurable benefits and burdens.

Types of real property

In addition to the differing forms of ownership, be aware of the differing uses of real property. Depending on the type, real property may be limited to certain uses. In this context, focus on zoning rules and regulations, common-interest community rules and fees, environmental considerations, and the need to ensure that your appraiser is qualified to provide an expert opinion at trial as to the value and permitted uses. The typical types or uses of property are residential (the marital home, the vacation home, or condominium), commercial (income-producing property, such as an office building, an apartment complex, or a retail center), and industrial or farmland. From a use perspective, take care to ensure that each property is in zoning compliance and fire code compliance, that grazing, water, and mineral rights are examined, and that any environmental issues are properly evaluated and incorporated into the advice provided in connection with trial and property division goals.

Specific matters to address

• Land records, lis pendens, and slander of title. While an increasing number of jurisdictions have passed “automatic orders” or “standing orders,” which theoretically prohibit the conveyance of real property after the commencement of a
dissolution case, those rules do not always prevent a party from attempting to dispose of or otherwise convey property in reaction to a dissolution action. While fraudulent conveyance laws and contempt proceedings may provide some relief, another method of preventing such a conveyance at the outset of a case and securing your client’s interest is to put the world on notice that a claim against the property is pending by recording and properly serving a lis pendens covering each property. As you utilize the title report to prepare the lis pendens, be confident that you have a good faith basis for placing the lis pendens, in order to avoid any claim of slander of title.

A claim of slander of title may be sustained if the following elements are proved:

communication of a statement disparaging the title,
the statement was false,
the statement was malicious, and
the statement caused special damages.

Examples of this would be placing a lien on a corporation’s property (when the opposing party is merely a stockholder or employee) or claiming an interest in the property of a paramour without any basis.

• Residential real property/marital home. We are often asked to seek exclusive possession of the marital home. The likelihood of success will be fact-specific. However, in all cases, it pays to be aware of the title history and status of the property (it may help to argue that a property has been in a particular family for multiple generations), as well as the particulars of the mortgage (name of the lender, payment status, balance due, monthly payment), taxes (amount, payment status, and whether included in the mortgage payment), home-owners insurance (name of insurer, payment status) and any maintenance issues or needs of the property. This information will have a role in the financial orders you seek and directly implicate the preservation of the marital estate.

As the case is proceeding to judgment, we typically confront the questions of whether the marital home should be sold, awarded to one of the parties, and/or refinanced. A primary consideration to review with your client is the question “can you afford it.” If not, and if the other party is not prepared to tender an acceptable buy-out of your client, then a sale of the property is best.

If the decision is made to sell the property, make sure that any agreement/order addressing the sale includes treatment of the property’s curb appeal and the sharing of any costs of sprucing up the property. As well, ensure that your client has protections regarding the terms of any listing agreement and that there are provisions in the final agreement/order mandating cooperation by both parties regarding showings and open houses (both in terms of the property being made available and that it is presentable).

The agreement will need to have mechanisms for price reductions and specify what constitutes an acceptable offer. During the term of any listing, the parties will need an agreement covering responsibility for the payment of the mortgage, taxes, insurance, maintenance, and repairs on the property. You will be well advised to talk through with your client the risk-reward balance between the benefits of including these protections in an agreement versus the risk associated with buyers or real estate agents becoming aware of mandatory pricing reduction mechanisms, which could affect potential buyers’ offers.

In the event of a buyout, be sure that if your client is the party being bought out, the other party has an obligation to refinance any existing mortgages or other encumbrances for which your client has payment responsibility within a strict
period of time (30 to 45 days should be ample). Include a provision that the court retains jurisdiction over the real property so that if the refinance is not completed within whatever timeframe you agree upon, the property must be listed for sale, or, at a minimum, the party being bought out can petition the court to order a sale). Include a hold-harmless provision and express language obligating the other party
to keep all payments current until the refinance is complete and state that the goal is to ensure timely payments by the other party and maintenance of your client’s credit rating. Have your client execute a quit claim deed and either hold it
in escrow or deliver it to the attorney for the other party in escrow, with express written instructions that it may be used only in connection with a completed and recorded refinance that fully releases your client.

Whether your client is awarded the marital home or receives an equity buyout, another question to confront is whether to seek or tender a deed now or in the future upon some triggering event, such as the minor children’s completion of high school. If your client’s name remains on the title, there are potential premises liability issues and real estate tax, obligations that may subject your client to future liability. As well, consult your tax advisor regarding capital gains holding periods and tax treatment of gains from the sale of your principal residence as you address the question of whether to remain in title or not. Federal law prevents an owner-occupied residential lender from exercising a “due on sale or transfer” clause if the transfer is to a spouse pursuant to a dissolution of marriage, legal separation, or incidental property settlement agreement.

If the decision is made to transfer the property from one party to the other at the time of the dissolution, any future payment of equitable distribution will need to be secured by a note and mortgage. This equitable distribution arrangement will force consideration of whether any existing loans should be refinanced to remove the liability of the party receiving the equitable distribution or whether the existing loans will remain in place and the liability of the party receiving the equitable distribution will be protected by a hold-harmless agreement. Although it is an imperfect solution, it may be helpful to have an alimony provision in the final agreement, allowing a party to return to court to seek a modification to enforce a hold-harmless and recoup payments to the lender that were otherwise made the responsibility of the other party in the decree. Though this imperfect solution may trigger tax consequences that your client should discuss with his or her tax advisor, those consequences may be preferable to an otherwise unenforceable hold-harmless provision.

The note and mortgage securing the equitable distribution should be for a sum certain, specify a rate of interest and due date, and require the obligated party to make full and timely payment of all mortgage payments, real estate taxes, home-
owner’s insurance, and maintenance costs necessary to protect the collateral. As well, it is good practice to add an “open end” provision to the mortgage, giving the secured spouse the option, but not the obligation, to pay and add to the amount
due any real estate taxes, insurance, and other such payments if not made by the party owing the equitable distribution. Finally, the note and mortgage need to provide a mechanism for foreclosing the mortgage upon any uncured default and
for the collection of interest and default interest, as well as
attorneys’ fees and costs upon default.

For a better understanding of the rules applicable to holding periods and conveyances of the marital home, review IRS Publication 523 and speak with your tax advisor.

• Income-producing property. If your case involves income-producing property,
carefully review each property for: (a) a rent roll (a listing of each tenant, the term
of the lease, and the payment obligation and history); (b) a listing of all tenant security deposits (be certain to understand your local law regarding the obligation to pay a tenant interest on any security deposit and requiring segregation of accounts); (c) each actual underlying lease; (d) any documentation exposing landlord-tenant friction, concerns, or complaints; (e) any documentation covering environmental considerations, such as lead-based paint, asbestos, oil tanks, and prior uses that may create liability for an owner; and (f) any reports that shed light on the condition of the property and any deferred maintenance that may exist. Without a full review of these items, an award of a property to your client may not result in the benefit thought to exist, based merely on an appraisal of the property.

Contracts and conveyancing

Whether your family law client turns out to be a seller or buyer, you will need some
ability to discuss contracts and conveyancing with him or her. For any contract, be
sure that the parties to the contract are accurately named and, in particular, that the property description is accurate and that the named seller exactly matches the owner named in the certificate of title you obtained early in the case. Be certain
that the contract calls for delivery of “marketable” title, not merely “insurable” title. “Marketable” title will be defined by your state’s standards of title, which describe what is or is not acceptable title for sellers and buyers. “Insurable” title means that a conveyancing deed may contain title issues that would be solved by a title insurer “insuring over” by assuming risk as to certain title issues. Though a tempting prospect, this solution may translate into an issue in the future. If your client accepts insurable title at the time of the purchase, he or she may not be able to tender “marketable” title at the time of a future sale, and the defect may not be insurable at that time.

The contract also needs to address typical contingencies. At a minimum, contingencies are needed to address: (a)inspections, such as structural, wood-destroying insects, septic, well, (both potability and rate of recovery); presence of
lead-based paint, asbestos, radon, and other environmental issues, such as oil tanks or leaks (include language giving the right to seek Phase I, Phase II, and further environmental testing, particularly if the property is not residential); (b) title
and survey issues; (c) any mortgage needed, including language setting forth a deadline by which the buyer must secure a loan commitment, and spelling out the loan-to-value ratio and any maximum interest rate for the mortgage; (d) any
required sale of an existing home or property; (e) what will occur if the buyer suffers loss of employment or reduction of income; (f) adjustments and treatment of costs at closing (covering such matters as heating oil in the tank), real estate taxes, brokerage commissions, and any seller concessions—all of which will affect the cash requirements at closing; (g) any special timing for a closing, such as school commencement or other important dates.

Be aware that in many jurisdictions, unless the contract specifies that time is of the essence, dates in the contract may not, in fact, be firm. When it comes to school commencement and finding alternate housing, if a closing is delayed, this can represent a problem that is best addressed in advance. In the current economic environment, it is not unusual for a seller to give a buyer a closing cost credit against the price. The contract should state that the final credit must be
approved by the new lender and disclosed on the HUD-1 Settlement Statement.

Take time as well to familiarize yourself with the conveyancing requirements of your jurisdiction. The ministerial requirements for your locale, such as the number and independence of witnesses, the requirement of acknowledgments or other notarial formalities, are all matters to discuss with your client.

In many jurisdictions, both at the state and local level, governmental entities are utilizing real estate conveyancing as a means of raising revenue. Be sure to educate yourself about applicable state and local conveyance taxes, tax returns, and similar tax stamp requirements, as well as becoming aware of any applicable tax exemptions. In Connecticut, for example, there is a conveyance tax exemption if the conveyance arises from a dissolution-of-marriage decree.

Title insurance has become ubiquitous in real estate transactions. The policy generally insures either the lender or the owner (a combined policy can insure both lender and owner) against certain title defects not otherwise excluded or excepted from coverage. It is good practice to develop a working relationship with a title insurer and, in particular, with that insurer’s legal department, to address any questions that may arise in connection with title issues.

At closing (or settlement, as it is known in certain parts of the country), the deed is delivered; loan documents are signed; adjustments are accounted for; fees (for brokers, agents, attorneys, and land records recordation) are collected; conveyance taxes are paid; and keys, alarm codes, and garage door openers are delivered. In some areas, the closing occurs in an attorney’s office. In other areas of the country, attorneys are not involved in the settlement process, and the closing occurs with oversight by an escrow or title company. The deed can take the form of a warranty deed (the seller “warrants” the title against all defects, except as expressly dis-
closed); a special or limited warranty deed (the seller “warrants” against any defects arising during the seller’s term of ownership), or a quit claim deed (the seller makes no representation as to the status of the title being conveyed). On an
arm’s length basis, a warranty deed is best. Between spouses, it is generally acceptable to tender a quit claim deed.

Foreclosures, deeds in lieu, and short sales

With increasing frequency, mortgage foreclosures have become part of the landscape for the family lawyer. Job loss, a reduction of income, increasing credit card debt, and less favorable debtor-side bankruptcy provisions have resulted in
more and more home mortgage defaults. Generally speaking, given the standardization of note and mortgage forms, every borrower will be jointly and severally liable on any loan documents. In the event of a loan default, a lender may initially be willing to enter into a repayment plan or other arrangement to bring the loan back to current status. However, if either the borrower or lender is unable or unwilling to do so, the lender will commence a foreclosure of the mortgage. Depending on the jurisdiction and type of loan, foreclosure may be judicial or nonjudicial. (For a general description of the foreclosure process, see page 10.) Foreclosures are an area in which you may want to have your client consult a specialist. In response to increasing numbers of foreclosures, many jurisdictions are implementing provisions requiring mediation or some other assistance for homeowners. Similarly, lenders may have foreclosure moratoria or workout policies
that may assist the borrower.

• Short sales are yet another mechanism by which properties in default might be handled. A short sale involves the sale of a property to a third party, but for a sale price that is less than what is owed to the lender. The process involves securing the lender’s advance agreement to accept less than what is owed, in exchange for the lender’s agreement to release the mortgage at the time of the sale to the third party. Generally, a lender will only consider a short sale if that is a more economically beneficial way to obtain some satisfaction of the debt and to avoid owning the property. If your client is considering a short sale, be sure to consult with an attorney well-versed in this area prior to entering into any purchase and sale agreement. The contract will need to have provisions covering the relationship between seller and purchaser as well as contingencies covering the seller and lender relationship. There are forgiveness-of-debt implications in short sales that can have income tax ramifications, and the lender may not be willing to waive any claim for deficiency.

In the context of distressed properties, there are certain limited exceptions from the forgiveness-of-debt rules contained in the Mortgage Forgiveness Debt Relief Act of 2007. The lender will issue a Form 1099-C—Cancellation of Debt—to the borrower, setting forth the amount of forgiven debt. The borrower then would file IRS Form
982—Reduction of Tax Attributes Due to Discharge of Indebtedness—to take advantage of any applicable exceptions. For an overview of this issue, IRS
Publication 4681 will be of assistance. In any case, review with a qualified tax
advisor the income-tax implications of debt forgiveness prior to taking any step
in this regard.

Finally, while too complex an issue to cover in this blog post, in any circumstance
where the debt load is burdensome to the family law client, recommend a consult with a qualified bankruptcy lawyer, so that the client understands his or her rights and the dischargeability of those debts in a bankruptcy court.

Conclusion

All family lawyers must develop a working knowledge of many varied areas of the law—a level of expertise sufficient to spot issues and know when the assistance
of other professionals is appropriate. As we have done for years with tax experts,
business valuation experts, and mental health professionals, we need to build
bridges to others with specialized knowledge of real property and its implications
as we counsel our family law clients and help them navigate the difficulties of
their cases.

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Direct Examination of a Divorce Forensic Accountant in Savannah, Georgia

Jason Cerbone · June 29, 2022 ·

Much has been written about cross-examination of an expert witness. However, far less is written about the important direct examination of the lawyer’s own expert — in the case, a forensic accountant.

The goal of every direct examination of a witness is to elicit information and opinions that are clear, convincing, and well-supported by the evidence.

The questions to ask

In a fundamental sense, the basic questions to ask an accountant — or any other expert witness are few and simple, They do not vary based on the subject matter of the expert’s opinion or analysis. They are:

Who are you;
What are you giving an opinion on;
What information did you review and what research did you conduct; and
What is your opinion?

Obviously, the “devil is in the details.” A successful direct examination of an expert witness hinges o n the lawyer’s preparation and skill in presenting witness. The most effective examination is by an attorney who is so knowledgeable about the field in question that he or she could render the opinion, but for a lack of credentials.

Proper preparation and the time required to accomplish it will depend on the subject of the opinion. For example, experts who opine on the value of objects such as art, jewelry, and even real estate, especially residential, rely on information, research, and analysis that is relatively easy fir a lawyer to absorb. On the other hand, the valuation of a closely held business, perhaps multinational in scope, is far more complex, involving interrelated factors such as location, market, business structure, and the often elusive factor of “good-will.” It also may involve tax considerations and consequences and fluctuations in international currency markets.

Frame the assignment

The first step toward a solid direct examination is to have a detailed conversation with your expert early in the case during which you discuss the scope of the assignment, the subject matter in question, and the nature and foundation of the expert’s opinion. Such a conversation can preclude an embarrassing discovery — even as late as the expert’s deposition — that you and your expert are “not on the same page.” This discussion should cover the experts anticipated preparation of the case throughout discovery, his or her independent research on the Internet or elsewhere, and the anticipated format of the final presentation, as well as budgetary constraints of the case.

Documents or other case information required for your expert’s work will be acquired through document production from the opposing party, subpoenas to third parties, depositions, or combinations thereof. Plan carefully with your expert to ensure sufficient time for acquisition and review. Even if your case budget or the judge will not allow your expert to be present during depositions — especially that of the opposing expert — work with your expert on the most persuasive sequence of questions to ask during depositions.

As the expert develops the necessary research and information, particularly when the subject matter is complex, make sure you understand the information obtained and its context in the case, not just the format of the information. For example, if corporate tax returns contain important information upon which your expert will rely, you must understand the tax return or at least the portions of it that bear upon your expert’s opinion and any parts of it the opposing expert may use to present a different view-point. An ill-prepared lawyer will be unable to defend against his or her own expert’s cross-examination, much less conduct an effective cross of the opposing expert.

During the initial stages of the expert’s work, maintain your focus on the questions at issue, the nature of the research and evaluation, and the proposed format of the final report. Do not sign off on an expert’s work-product until you have examined a draft report and considered the various methods of presentation. The format of the final report can greatly hamper or enhance the persuasiveness of your expert’s opinion and report.

In at least some places, once an expert has been designated or disclosed as a witness (as opposed to a purely consultative role) any communications by counsel or the party are discoverable and no longer privileged.

Introduce your expert

In presenting an expert to the court, more than name, address, and educational degrees are important. Often opposing counsel will agree to stipulate to your expert’s credentials and experience, and the judge may enthusiastically welcome such time saving. However, the court’s overall impressions of the expert may in the end be more determinative of the outcome than the particular’s of the expert’s analysis and report. At a minimum, ask that a printed curriculum vitae for your expert be introduced as an exhibit. Unless your judge happens to be quite familiar with the expert through prior in-court testimony, such highlights of qualifications, both academically and experientially, may be important for the court to have in hand as it weighs both expert’s credentials and opinions.

A portion of the direct testimony of an expert witness should include a reasonably comprehensive overview of the various types of information, discovery documents, depositions, independent research, statistics, and the like, which the expert reviewed, considered, and analyzed in reaching an opinion. If the expert’s list is long, the complete list need not be presented in testimony. However, in addition to identifying classes of information, the most important specific items should be identified and explained briefly to the judge. If your expert is using a report format of his or her presentation, an appendix listing the specific items at the end of the report is useful.

Although all items considered by an expert need not be offered into evidence, essential items should be in evidence prior to the expert’s testimony. Then, during direct testimony, as the expert refers to each item (for example, a company tax return), the judge can be referred to specific pages and better follow the testimony.

Communicating the opinion

The goal of expert witness testimony is to persuade the court of the inherent superiority of this expert’s opinion. The expert must be adept at communicating complex information in a clear and concise way and in a fashion that is persuasive but not intellectually or verbally arrogant. Based on your work with the expert, and before the expert’s deposition or interrogatories are completed, carefully structure the sequence of questions to elicit the most persuasive opinion at trial.

Some lawyers find it most effective, particularly with some judges, to ask the opinion questions right after they have qualified the expert and before reviewing the process by which that opinion was obtained. This is particularly true if the expert has submitted a report that the court review during testimony.

A written report may be excluded from evidence as objectionable hearsay, although it is common practice for both counsel to stipulate that their respective expert’s report may be admitted into evidence. Even if excluded, the report may be presented to the judge as a demonstrative aid for review during testimony. Likewise, the report would qualify as a summary under evidence codes that provide for such admissions.

Demonstrative evidence

Visual presentations, whether on old-fashioned poster board with an easel or as newer methodology, must be functional. If using graphic boards, make sure that they are accurately prepared, preferably professionally, well ahead of trial, and that the type, graphics, and other images are easily viewable from the judge’s chair.

Frequently, portions of a case are presented through audiovisuals. These can be as simple as a laptop presentation in the courtroom or providing the appropriate connection, disk, flash drive, or other device for use by the judge and opposing counsel in followiong along on their own lap-tops If you choose to use audiovisuals, be sure to anticipate and investigate the necessary logistics of the courtroom before the trial for electrical outlets, Internet connections, placement of screens, and the like.

A “war story” from a trial from years ago illustrates how the expert’s presentation can affect the outcome of the case. The particular case involved a real estate development business with many properties in various parts of the state. Some projects were under construction, others were in presages, or lots of infrastructure in place or under construction, and others were in presales, or lots with infrastructure either in place or under construction, and others were completed units awaiting rental or sale and raw land. In many, the husband, as the developer, had minority partners involved. The experts hired by each side had supportable intellectual bases for reaching different opinions of value on certain properties. The judge was not sophisticated in financial matters but listened attentively to testimony and evidence.

The wife’s expert testified first, and her counsel limited the direct examination to about 45 minutes. The expert’s report consisted of two pages, each of which had only four numbers summarizing asset valuation, the marital and non-marital portion, and a proposed distribution. Attached were pages listing each of of the assets under discussion.

The husband’s counsel, a very able and experienced Savannah divorce lawyer, cross-examined the wife’s expert for several hours, reinforcing the strength of the opposing expert’s testimony, to the detriment of his own expert’s opinion, which followed the next day. Husband’s expert, who was also highly qualified, made his presentation by using a large white board upon which he wrote by hand in a blue marker the names of the assets and the values he had assigned them. The positioning of the easel and the size of the writing made it hard for both the judge and opposing counsel to see across the courtroom. When the decision was made a couple of weeks later, the court adopted all of the wife’s expert’s opinions.

Commenting on the opposing report

Judges vary widely on the extent to allow an expert to comment on the other expert’s opinion. For evidence, it is not proper for the expert who testifies first to comment on the opposing expert’s opinion or reports because those opinions or reports are not yet in evidence. It also may be inconvenient to have the first expert return for a rebuttal later in the case. This may result in the court and opposing counsel agreeing to take such testimony during direct.

Strategically it is better for the first expert to be recalled for rebuttal, fir for no other reason than to refresh the court’s recollection of his or her testimony. However, as part of the first expert’s direct examination, it may be useful to have the expert comment on why the opposing expert’s methodology was not used or why some information was given more weight than other information.

As with any case tried before a judge, the key to effective presentation lies not only in knowing the court’s level of knowledge, time constraints, or patience with expert testimony, but for the attorney and expert to be fully prepared, “in sync,” and equipped to deliver direct examination testimony that is clear, persuasive, and informative.

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Divorce: Your Day In Court in Savannah, Georgia

Jason Cerbone · June 29, 2022 ·

Be ready and keep your cool

Although most divorces are settled out of court, some require temporary orders from the court and others a trial to resolve some or all issues. Whatever the reason for them, court appearances can raise anxiety of even the most stouthearted. Knowing what awaits you, how to dress, and how to act will alleviate some of your stress.

Going to court

Going to court is bound to increase anxiety. Knowing what will happen and how to act will diminish your nervousness.

For your court appearance, dress comfortably, conservatively, and in a manner that shows respect. If you are uncertain about what to wear, ask your lawyer.

Court personnel usually will include a judge, court reporter, court clerk, and bailiff. In a contested trial, your spouse, his or her attorney, experts, and other witnesses will be present.

If more than one case is set for trial on the same morning, you may have to wait while other cases are handled. Being in court can be tedious, so bring supplies to get you through the day: a pen or a pencil and small note pad, spirit, hard candy or a snack, and book (in case you have to wait).

When your case is called

As your legal representative, your lawyer will give a brief statement of the facts or legal basis for your suit. This may occur in open court or may take place informally in the judge’s chambers or be included in written documents filed with the court.

In a contested case, you will be asked to come forward, be sworn, and take the witness stand. Your attorney will ask questions that will enable you to tell your story to the court. It is not unusual for the judge to ask a question or two. After your case has been heard, it is submitted to the court, and a judgment is requested. An executed marital separation agreement may be presented to the judge for approval or review.

When a contested case is called, you will be offered a chair beside your lawyer at the counsel table. This will be your place during the trial. The petitioner will put on his or her case and witnesses first. Witnesses will be called and sworn and will testify. Each party’s attorney will have the opportunity to question each witness as well as the petitioner and the respondent.

If you are the respondent, you may be called for cross-examination. (The opposing lawyer may request your testimony under oath before your attorney questions you.) You may also be the first witness. This is common practice. Your lawyer will assist and prepare you for this.

After the case is heard, your lawyer argues the issues. Sometimes each lawyer submits a brief or memorandum after the trial. The judge may decide the case immediately, m may spend some time studying it, or may wait to hand down a judgment until he our she has further memorandums and briefs.

Your testimony

Whether or not your case is contested, the following suggestions will improve your appearance and testimony in court.

Tell the truth. Tell only what you know. Understand the question. Answer only that question. As with your deposition, do not volunteer information when testifying in court. If you are asked how many children are in your family, for example, simply give the number. Do not volunteer additional information such as, “We have two children. I wanted more, but my five years in the penitentiary prevented a larger family.”
Take your time. Talk loudly. Don’t chew gum. Keep your hands away from your mouth.
Be courteous. Don’t argue with the other lawyer. Do not lose your temper.
Be sincere and direct. Remain on point and brief.
Don’t be distracted or afraid. Look at the person who asks the questions, and be as positive as you can. Just tell your story in your own words to the best of your ability.
Do not be ashamed to tell the whole story. This is your one day in court. The outcome of the case may very well depend on the facts disclosed by you and your witnesses.

Your lawyer will consult with you during the trial. As the trial progresses, tell your lawyer, in a note or a whisper, anything he or she should know, but be careful not to distract from the case. During testimony, your lawyer must concentrate on each question and answer, watch the reactions of the judge and opposing counsel, and be ready to object.

Never react to the testimony of others. No matter how strongly you disagree with it. Gasps, gestures, and reactions. are never appropriate. Such behavior will reflect poorly on you, and may result in a reprimand from the judge.

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Children, Parenting, Custody, & Child Support in Savannah, Georgia

Jason Cerbone · June 29, 2022 ·

Always put your kids first

Courts examine various factors in making custody and child support determinations. Although they vary from state to state, guidelines were conceived to provide fair and consistent results.

As you go through the divorce process, stay focused on your children’s welfare. Remember that your relationship with your spouse does not end with the final decree. You will continue to have contact with your ex regarding support, visitation, and other parental responsibilities. For the sake of your children, keep the lines of communication open. Don’t let your children be the losers in your divorce.

Custody of minor children is about two things: decision making and timesharing. One or both parents may be responsible for decisions affecting the children. Timesharing refers to the amount of time each parent will spend with the children.

Determining custody

The court determines custody on the basis of what it believes to be in the children’s best interests. The court considers all relevant factors, including the:

child’s relationships with parents, siblings, and any others who may have a significant impact on the child’s life;
parents’ wishes;
child’s wishes, depending on the age and maturity of the child;
mental and physical health of all the individuals involved;
ability and willingness of each parent to care for the children;
respect each parent shows for the parental rights of the other parent;
adherence to a timesharing schedule;
suitability of each party’s parenting plan;
geographic distance between the parties; and
willingness and ability of each parent to work cooperatively.

Types of custody

A variety of terms describe the way parents share their time spent with their children:

Sole physical custody means that the child resides with and under the supervision of one parent, subject to the power of the court to order visitation with the other parent.
Joint physical custody means that each parent spends significant time with the child. This arrangement generally assures frequent and continuing contact with both parents. It does not necessarily mean that the parents spend equal time with the child.
Sole legal custody means that one parent will make all of the major decisions regarding the health, education, and welfare of the child.
Joint legal custody means that both parents share decision-making responsibilities relating to major issues, such as those affecting the child’s health, education, and welfare. In some states, it is necessary to specify which of those decisions will be made by both parents. All other decisions can be made by either parent. Some states operate under the presumption that joint legal custody is in the best interests of the child.

Timesharing

Timesharing describes an arrangement through which both parents spend time with the children. Timesharing can be as varied as the families using it. There is no “right” schedule that fits all families or age groups.

Dispute resolution

If the parents cannot agree on custody and a parenting plan, a variety of methods exist for arriving at a custody agreement and order: mediation, arbitration, and evaluation and trial. In states that require mediation, the parties must attempt to resolve their dispute with a trained mediator before the court will address custody issues. If the parties do not reach an agreement with the help of a mediator, the mediator cannot impose a resolution.

Arbitration is a voluntary process similar to mediation except that the arbitrator has the power to make a ruling if the parties do not agree.

If mediation fails, a mental-health professional, such as a social worker, may evaluate the child’s best interests and make custody and timesharing recommendations to the court.

Financial support

Child support is a court-ordered payment made to a spouse weekly or monthly for the support, maintenance, and education of the children. Voluntary gifts, clothes, transportation, vacation expenses, and rent, which benefit the children, may not be
considered support. The court does not usually require the custodial parent to account for how he or she spends support. Child support stops when the child reaches the age of majority (which varies by state but may be age 18 or 21) or when state law decrees it or agreement by the parties. Parents may agree to care for the child beyond age 18, for example, until the child completes a college education or reaches age 21.

Guidelines

All states have federally-mandated guidelines by which courts determine support. The guidelines may contain formulas or tables that define the incomes of both parents and the timesharing schedule. The guidelines may require parents to share certain expenses in proportion to their incomes, such as work-related child care and medical insurance.

Parties who wish to deviate from the guidelines must persuade the court that a change is necessary. Your lawyer can explain how deviation works in your state.

Enforcement

Child support orders may be enforced in a variety of ways. Child support is not dischargeable in bankruptcy, but unpaid support is collectible for only a limited time. Thus, if you allow support to remain unpaid for an extended period, you may forfeit your right to it. Consult your lawyer about any delinquency.

Modification

Until a child is emancipated (i.e., an adult), the court can modify custody and child support whenever necessary. A change of circumstances is generally required for the court to modify a previous order. Remarriage of either parent does not automatically result in a change of circumstances.

Tips for better parenting

Now and after your divorce, keep in mind the following suggested parenting guidelines.

Put your children’s welfare ahead of any satisfaction you may get from fighting with your former spouse. Involving your children in any conflict with your former spouse can do long-term damage to them.
Remember that children need two parents. Help your children maintain a positive relationship with the other parent; give them permission to love that parent.
Show respect for the other parent. Do not make derogatory remarks about the other parent to or in front of the children.
Honor your timesharing schedule. Be courteous to the other parent by always notifying him or her if you will be late or cannot spend time with the children. Children may view missed visits, especially without a call, as rejection.
If you are the non-primary parent, do not schedule “special activities” for every minute you spend with your children. Your kids need at-home time with you, too.
Do not use the children as messengers or spies. Never pump your children for information about the other parent.
Strive for agreement on important issues that affect your children, such as discipline, so that you do not undermine the other parent.
Use common sense in exercising your custodial and visitation rights. Follow the old adage “Don’t make a mountain out of a molehill” and follow the Golden Rule: “Do unto others as you would have them do unto you.”
Don’t send or collect child support through your children.

Communicating about your children

It’s important that you communicate to the court the relationship you have with your children. You may be the best parent in the world and have impressive relationships with your children, but if you cannot demonstrate that to the judge, the counselors, and the psychologists, you will not succeed in your case. Some people verbalize better than others. If you have good communication skills, it’s a big help. If you are not a good communicator, you must work to improve your skills. If you need help in this area, talk with your lawyer about it.

When discussing their children before a judge or evaluator, many litigants refer repeatedly to “my” son or daughter. Keep in mind that whatever your feelings about your spouse, you are not the child’s only parent. Persistent use of language that excludes the other parent may cause the court to doubt your ability to foster a healthy relationship between the child and the other parent.

When asked to describe their children, most parents do a terrible job. They have difficulty saying much more than, “Johnny’s a great little kid.” You must make the judge and evaluator believe that Johnny is “a great little kid” by helping them understand and visualize Johnny. Make the judge and evaluator feel close to Johnny by demonstrating that you feel close to him. If you can do that, the psychologists and the judge will be unlikely to want to disturb your relationship with Johnny.

When you speak about Johnny, use “word pictures.” For example, “I have a headache” means different things to different people. “I have a throbbing headache” is more communicative. And, “I have a throbbing headache that is making me nauseated” is even more descriptive.

These are word pictures and are the kinds of descriptions you should use when talking about your children. Remember that the judge who hears your case will have heard hundreds of cases. You must humanize yourself and your children so that the judge can see that the names on paper represent real people—children with distinct characteristics and personalities and a parent who cares about and loves them.

Practice describing your children. First, write down a description of each child. Focus on their imaginations, sense of humor, or sensitivities. Then try describing the children aloud.

When you describe a child, begin with physical characteristics. Your Johnny may be blond, blue-eyed, four feet tall, 80 pounds, and eight years old. You will also want to show a current picture of Johnny so that the judge and evaluator can see him. Next, help the judge and evaluator understand Johnny’s personality, strengths, weaknesses, and the characteristics that make him unique. Again, do this with word pictures. Anecdotes about Johnny make him come alive. Remember, if you are asked to describe your child, this is not the time to complain about your spouse.

The evaluator and judge want to know how much you really know about your children. For example, what dress size does your daughter wear? Who is your son’s music teacher? What is your daughter’s favorite color? What is your son’s favorite ice cream? You should know the answers to all of these questions.

A large part of the process is assessing your relationship with your children; building your parenting skills and talents; recording information about you, your spouse, your children; and perhaps most important, improving the quality of your relationship with your children.

Your children simply can’t lose if they come out of this case with a more caring, understanding, attentive, and skilled parent. If your spouse has made the same efforts, your children will emerge from the divorce with two parents who are functioning, both physically and emotionally, on a higher plateau.

You may even notice that some of your problems with your spouse disappear during the divorce. Don’t be surprised if your spouse “cleans up his or her act” before going to court. Don’t be angry about this. Remember, your children will benefit.

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The Language of Divorce in Savannah, Georgia

Jason Cerbone · June 29, 2022 ·

Glossary of Legal Terms

Action. The legal term for a lawsuit.
Affidavit. A written statement of facts made under oath and signed before a notary public.
A.D.R. Alternative Dispute Resolution. Settlement techniques used to resolve a case without a trial.
Agreement A transcribed or written resolution of the disputed issues when the parties have resolved issues in the case. Sometimes called a Stipulation.
Alimony: Payment of support from one party to another; in some states may include property division and attorney’s fees. See also Maintenance.
Alimony pendente lite: A temporary order of court that provides support for one spouse and/or children while the divorce is in progress.
Allegation: Statement contained in a pleading or affidavit setting forth what the pleader intends to prove.
Annulment: The legal ending of an invalid marriage; according to law, neither party was ever married, but all children born of the annulled marriage remain legitimate. Grounds for annulment vary from state to state.
Answer: The second pleading in a divorce, separation, or annulment, which is served in response to the petition for divorce and which admits or denies the petition’s allegations and may also make claims against the other party. Sometimes called a Response.
Appeal: The process whereby a higher court reviews the proceedings resulting in an order or judgment of a lower court and determines whether there was reversible error.
Appearance: A respondent’s formal method of telling the court that he or she submits to the court’s jurisdiction. Appearance also can refer to a party’s physical presence in court.
Change of venue: A change of the place within the state where the case is to be tried.
Child support: Financial support for a child (not taxable to the recipient or deductible to the payor spouse).
Common-law marriage: A relationship between a man and a woman, recognized as a marriage in some states, although no license or ceremony was involved. A divorce is required to terminate a common-law marriage.
Community property: Generally, property acquired during a marriage as a result of the parties’ work and effort. Applied in states known as community-property states.
Contempt of court: The willful and intentional failure to comply with a court order, judgment, or decree by a party to the action, which may be punishable in a variety of ways.
Contested case: Any case in which the court must decide one or more disputed issues.
Court order: A written document issued by a court, which becomes effective only when signed by a judge.
Cross-examination: The questioning of a witness by the opposing party during a trial or at a deposition, to test the truth of that testimony or to develop it.
Custody: The legal right and responsibility awarded by a court for the care, possession, and rearing of a child. Distinctions are sometimes made between legal custody, which relates to decision making responsibility, and physical custody, which relates to residence or physical access.
Default or default judgment: An order or judgment granted by a court without hearing the other side because that side failed to submit papers within the time allowed or failed to appear at a hearing.
Defendant (respondent): The person (husband or wife) who is sued for divorce.
Deposition: The testimony of a witness taken out of court under oath and in writing.
Direct examination: The initial questioning in court of a witness by the lawyer who called him or her to the stand.
Disclosure, discover, or production of documents: Procedures followed by lawyers to determine the nature, scope, and credibility of the opposing party’s claim and his or her financial status.
Dissolution: The act of terminating a marriage; divorce; does not include annulment.
Emancipation: The point at which a child may be treated as an adult and in some states when the duty to support may terminate.
Equitable distribution of property: A system of distributing property in connection with a divorce or dissolution proceeding on the basis of a variety of factors without regard to who holds title.
Evidence: Documents, testimony, or other demonstrative material offered to the court to prove or disprove allegations.
Ex parte: An application for court relief made without the other party being present. In some states the other party is present but has been given very short notice of the application.
Grounds: In the eyes of the law (under statute), the reason for granting a divorce.
Guardian ad litem (GAL): A lawyer or mental health professional appointed by the court to represent the children.
Hearing: Any proceeding before the court for the purpose of resolving disputed issues through presentation of testimony, offers of proof, and argument.
Hold-harmless: A situation in which one spouse assumes liability for a debt or other obligation and promises to protect the other spouse from any loss or expense in connection with it.
Indemnification: The promise to reimburse another person in case of an anticipated loss; the same as hold-harmless.
Injunction: A court order forbidding someone from committing a particular act that is likely to cause injury or property loss to another party; the same as a restraining order.
Interrogatories: A series of written questions served on the opposing party to discover certain facts regarding the disputed issues in a matrimonial proceeding. The answer to interrogatories must be under oath and served within a prescribed time.
Joint custody: The shared right and responsibility of both parents awarded by the court for possession, care, and rearing of the children.
Joint property: Property held in the name of more than one person.
Jurisdiction: The authority of the court to rule on issues relating to the parties, their children, or their property.
Legal separation: A court judgment or written agreement directing or authorizing spouses to live separate and apart. A decree of separation does not dissolve the marriage or allow the parties to remarry, but may resolve all financial claims.
Maintenance: Spousal support. See also alimony.
Marital property: Accumulated income and property acquired by spouses, subject to certain exclusions in some states.
Marital settlement agreement: The parties’ settlement is reduced to a written document or orally placed on the record in open court. This agreement also may be called a property settlement agreement or separation agreement.
Mediation: A process by which a neutral third party facilitates negotiations between the parties. The mediator generally has no decision-making authority.
Motion: A written application to the court for some particular relief, such as temporary support, injunction, or attorney’s or expert’s fees.
Motion to modify: A party’s formal written request to the court to change a prior order regarding custody, child support, alimony, or any other order that the court may change by law.
Motion to vacate the premises: Upon a showing of good cause by one party, the court orders the other spouse to leave the marital residence.
No-fault divorce: When divorce is granted without a party having to prove the other party’s marital misconduct. “Fault” is marital misconduct that may be considered for some issues in some states.
Notice of hearing: A paper that is served on the opposing lawyer or spouse listing the date and place of a hearing and the motion or motions that will be heard by the court.
Order: The court’s ruling on a motion requiring the parties to do certain things or setting forth their rights and responsibilities. An order is reduced to writing, signed by the judge, and filed with the court.
Party: The person in a divorce action whose rights or interests will be affected by the divorce.
Petition (compliant): The first pleading in an action for divorce, separate maintenance, or annulment, setting forth the allegations on which the requested relief is based.
Petitioner (plaintiff): The party who files the petition for divorce or any other petition.
Plaintiff: The petitioner.
Pleading: Formal written application to the court for relief and the written response to it.
Pleadings include petitions, answers, counterclaims, replies, and motions.
Privilege: The right of a person to make statements to his or her spouse or lawyer,
member of the clergy, psychiatrist, doctor, or certified social worker that are not later admissible in evidence.
Pro se: A litigant who is not represented by a lawyer (also “pro per”).
Relief: Whatever a party to a divorce proceeding asks the court to do: dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the complaint of the other party, and so on.
Reply: The pleading filed in answer to the allegations of a counterclaim.
Report of referee with notice: The written document prepared by a referee or court-appointed officer after a hearing and submitted to the parties (husband and wife) and the judge; it is not law and not final or an order of the court, but it is recommended to become an order of the court.
Respondent (defendant): The one who defends the divorce proceeding brought by another.
Request for production of documents: A series of written requests served on the other party seeking the production of documents, such as financial records. Responses must be provided within a fixed time.
Rules of evidence: The rules that govern the presentation and admissibility of oral and documentary evidence at court hearings or depositions.
Separate property: Property that is not “marital property” but belongs only to one spouse.
Set off: A debt or financial obligation of one spouse that is deducted from the debt or financial obligation of the other spouse.
Settlement: The agreed resolution of disputed issues.
Show cause: Written application to the court for some type of relief, which is made on such notice to the other party as the court directs.
Stipulation: An agreement between the parties or their counsel.
Subpoena: A document served on a party or witness requiring appearance in court.
Failure to comply with the subpoena could result in punishment by the court. A subpoena duces tecum is a subpoena requesting documents.
Summons: A written notification that legal action has commenced, requiring a response within a specified time period.
Temporary or pendente lite motions: Applications to the court for interim relief pending the final decree of divorce, separation, or annulment. Typical temporary motions include
Temporary restraining orders (TRO): An order of the court prohibiting a party from doing something—for example, threatening, harassing, or beating the other spouse or the children, selling personal property, withdrawing money from accounts, denying access to a motor vehicle.
Testimony: Statements under oath by a witness in court or during a deposition.
Transcript: A typewritten record of testimony taken by a court reporter during a deposition or court.
Trial: A formal court hearing to decide disputed issues raised by the pleadings.
Uncontested divorce: A divorce proceeding in which the parties have reached an agreement on all issues.

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