In family law matters, the attorney establishes the strategy and executes the plan, but experts often play a critical role in the success of the case. Retaining the right expert is extremely important. As with lawyers, all experts are not created equal. An incompetent or unqualified expert can destroy a case.
Family law is far more complex than is generally understood. It is litigation not unlike business litigation. The Evidence Code and the Code of Civil Procedure apply in family law matters as they do in other types of litigation. A divorce is, to a large degree, the division of the assets of a partnership. The same fiduciary duties exist between parties both before and after separation, as exist in corporate transactions. If civil cases don’t settle, they proceed to trial. The same is true of family law matters.
Divorcing parties can agree to divide assets, resolve issues and settle their differences on almost any basis they choose. However, if they do not settle their conflicts, they may end up in a courtroom. Litigation may involve the testimony of experts. In family law, an expert is an individual who has special knowledge, skill, expertise, training or education that make the expert’s opinions helpful to a family law court on a contested issue. Experts are almost mandatory in certain situations. The qualifications and credibility of an expert can be critical to the weight given to the expert’s opinions by the divorce court. The early retention of an expert can significantly enhance the chances of a favorable settlement. The experts listed here may be utilized in family law matters.
Courts may not allow experts to testify using case specific hearsay as the foundation for their opinions. This rule may prevent experts from testifying to matters that previously were common place. One example of this issue exists when the expert is to render an opinion and testify in a divorce case as to financial records when the issuing institution has not retained the specific records being relied upon. This problem is not solved simply because the party has the original bank statement, cancelled check or other document, in that those documents are hearsay. To be the foundation for an experts opinion, the documents must be subpoenaed from the institution directly into court.
An actuary may need to be retained to value a defined benefit retirement plan if the plan is being awarded to one party and the plan has a community interest.
Art, Antiques and Collectibles Appraiser
If the parties own fine art, antiques, coins, rugs, or other collectibles, it is not uncommon to retain experts familiar with the particular assets to render an opinion as to the fair market value.
A forensic psychologist/psychiatrist, known as a “Family Code section 3111 / Evidence Code section 730” expert, may be retained as an expert. This expert will meet with the parties, the children, and collateral witnesses in order to make a recommendation regarding custodial issues and a parenting plan. A forensic psychologist/psychiatrist may be retained by a party as an Evidence Code section 733 expert to attack the report of the “Family Code section 3111 / Evidence Code section 730” expert based on the methodology, logic, and/or protocols used in the preparation of the “3111 / 730” report.
An attorney may be appointed by the court for a child in limited situations. This attorney is not a replacement for an evaluation expert. He/she serves different roles and purposes. An attorney for a child may be helpful in representing a child’s best interest and in expressing the child’s opinions to the family law court.
A therapist may be retained to assist the parties, on a temporary basis, with co-parent counseling to assist with custodial issues, and minimize the necessity for frequent court intervention.
A child therapist may be retained when there are child related psychological or emotional issues.
An attorney or mental health professional may be appointed as a parenting plan coordinator to assist with conflicts between the parties regarding scheduling, activities, communication, and other related matters.
On rare occasions, an educational expert may be retained to assist in presenting evidence in relation to the best school for a child or to address educational concerns. These experts may be used when the child has special needs, has unique talents, or intellect.
Family Court Services may be appointed to complete a Child Custody Investigation (CCI). A CCI is often used in emergency situations. These investigations address many of the same issues that are addressed in a child custody evaluation, but in a far less extensive and far less expensive manner. These investigations generally involve home visits, interviews with the parties, children, and collateral witnesses. These investigations are more expedited than a “Family Code § 3111 / Evidence Code § 730 evaluation,” do not involve psychological testing, and are generally most appropriate when there is a need to address issues on an urgent basis. However, a CCI is not a replacement for a 3111 / 730 evaluation.
The valuation of a business often involves the determination of the reasonable compensation of the operating-spouse. The allocation of the increase in the value of a separate property business may involve the determination of reasonable or adequate compensation of the operating-spouse. Reasonable compensation can be established by an individual with specialized training in this area. The analysis must be statistically adjusted to reflect the economics of the appropriate geographic area. The analysis will be different depending on which of the two different standards is used.
The importance of an expert, the right expert, cannot be overstated in a case regardless of whether it is settled or tried.
A corporate attorney may be retained if the matter requires the structure, formation, or drafting of documents relative to the creation of an LLC to hold jointly-titled real property. A corporate attorney may be necessary in cases involving a stock pledge agreement used to provide security for an equalization payment, a clawback agreement relative to receiving a share of future sales proceeds of a business awarded to the other spouse, a covenant not to compete, a sale of a business, a shareholder dispute, the termination of a spouse’s employment from a community business, shareholder agreements related to continued joint ownership of a business, etc.
Estate Planning Attorney
An estate planning attorney may be necessary to revoke a trust or revise estate planning documents either during or after the divorce process. An estate planning attorney may also be helpful in addressing issues regarding existing estate planning documents.
An Electronically Stored Information expert may be needed to address the client's and the opponent's E.S.I. issues.
If the community or a business in which the community may have a right to reimbursement owns equipment of significant value, the equipment may need to be valued by an expert. The equipment may include items such as machinery, trucks, computers and any other mechanical or electronic devices.
An attorney licensed in a foreign jurisdiction may be needed if the law of that jurisdiction is relevant.
A forensic accountant may be necessary to address issues related to:
- Marital standard of living relative to spousal support
- Characterization and allocation of stock options, retirement plans and other assets
- Tax issues
- Business valuation
- Controllable cash-flow (income)
- Tracing of separate property
- Credits and reimbursements
Forensic Computer Expert
A forensic computer expert may be necessary if the copying and/or examination of a computer hard drive is required as part of the discovery process.
Furniture and Furnishings Appraiser
Even though furniture and furnishings are typically valued at “garage sale” prices, appraisals may be needed if the parties do not agree on the division and values of these items.
Ink/Fraudulent Document Examiner
A handwriting expert also known as a fraudulent document examiner may be useful if there is a question as to the authenticity of a document or a signature.
Jewelry and Watch Appraiser
If jewelry, gems, rings, watches or other similar items are community property, as opposed to the separate property of one of the parties, and there is a question as to value, an expert may be needed.
A medical doctor may testify to a party’s health, in limited situations. Health may be relevant to the ability to work or ability to care for children.
An attorney specializing in Qualified Domestic Relations Orders and retirement plans will be retained if there is interest in an Employment Retirement Income Security Act (ERISA) retirement plan that is being divided.
Real Estate Appraiser
If the parties do not agree to (1) sell real estate, (2) own it jointly or (3) as to the fair market value of the property, a real estate appraiser may need to be retained.
A real estate appraiser may also be needed to determine fair rental value of real estate.
Vehicles are generally valued using the Kelly Blue Book (kbb.com). However, if the vehicle is unique, not listed in the KBB or is a vintage vehicle, an expert that specializes in the particular type of vehicle in question may be required.
Vocational Rehabilitation Evaluator
If there is an issue regarding imputing income to a party who is unemployed or underemployed, a vocational rehabilitation evaluator may be retained to testify as to a party’s ability to earn an income and as to the available opportunities.
A financial planner or wealth manager may be helpful regarding future financial planning, projection of future income, etc.
Yacht and Boat Appraiser
Yachts and boats are appraised by surveyors. The appraisal is referred to as a survey. The survey may be limited to the yacht or boat or may include an analysis of the engines.