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 California 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 partnership assets. 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 Judge 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 following experts may be used in family law matters.
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 determine the fair market value.
A forensic psychologist/psychiatrist, known as a “730” expert, may be retained as the court’s expert to 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 a 733 expert to attack the report of the “730” expert based on the methodology, logic, and/ or protocols used in the preparation of the “730” report.
An attorney may be appointed by the court for a child in limited situations. The attorney is not a replacement for a “730." They serve different purposes. The attorney may be helpful in representing a child’s best interest and in expressing the child’s opinions to the 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 appearances.
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 education concerns. These experts may be used when the child has special needs or 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 “730,” 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 730 evaluation.
The valuation of a business often involves the determination of the reasonable compensation of the operator-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 operator-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 two different standards are used.
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.
The importance of an expert, the right expert, cannot be overstated in a case regardless of whether it is settled or tried.
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 with a community interest 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.
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.
An attorney licensed in a foreign jurisdiction may be needed if the law of that jurisdiction is relevant.
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.