Expert Witnesses in Your Divorce Case
Your experts are the professionals on whom you rely upon for opinions on such subjects as the value of your home or the amount your spouse is capable of earning. In your preliminary selection of experts in Chapter Seven, you selected the traits you wanted in each expert. Your expert should have credibility so that the court will accept his or her opinion verbatim. Your expert should have qualifications that eliminate all doubt as to his or her ability to form an opinion on the subject. Your expert should exude integrity.
Your expert will have a precise answer, admissible in court, to a question such as "What is the proper valuation of the home?" Expert testimony is allowed, and in a practical sense required, when the subject is beyond common knowledge. You will use your expert to persuade, either your spouse in settlement or the court at trial, that your value is right.
You are entitled to give your opinion on the value of your home. However, unless you have market information on which to base your estimate, such as having purchased it two months ago for Three Hundred Thousand Dollars, the court is likely to disregard your opinion. You can’t use the prices at which similar homes sold for; that is hearsay—a statement made out of court that you are trying to get the judge to rely upon.
Enter your expert. This appraiser has valued three hundred fifty residences in your community over the last five years. The appraiser has testified in court as to residential real property values twelve times in the last three years. He or she searches public records to find the prices at which comparable homes have in fact sold. Building plans for the comparable homes are reviewed, your home inspected, and differences noted in square footage and amenities. Your expert makes adjustments in the comparable sales figures using market factors the appraiser has found to exist, such as your family room addition that increases the value of your home by Thirty-Five Thousand Dollars.
Having found the price at which your home would now sell for on the open market, the appraiser may go on to calculate the reasonable rental value and the replacement value to ensure that the highest price for your property has been established. The judge will receive this expert’s testimony into evidence and use it, as is, if no conflicting evidence is offered. If conflicting opinions are offered, the judge must pick the most credible expert opinion.
Your appraiser also assists in the preparation of your case. Further, if your spouse gets an appraiser, your expert can tell you why that opinion is wrong, or at least why it is different.
Experts almost always work with your attorney, not you, unless the expert needs to get facts from you firsthand. In valuing the business your spouse operates, your expert suggests to your attorney the documents to be produced and questions to be asked. Your expert will also help your attorney to prepare for the deposition he or she will take of your spouse’s expert.
Your job and your attorney’s job are not finished with the selection of the expert. Your attorney should never blindly rely on the expert’s ultimate findings. Your attorney will need to understand the valuation process, the law and the nuances in the valuation of a particular asset in order to narrow down the areas of difference between your expert and that of your spouse.
Generally, your attorney selects your expert and then introduces the two of you to make sure the expert is acceptable is acceptable to you. One major exception is selecting an expert for valuation of a business you run. Not only are you an expert yourself, you may know someone extremely knowledgeable about your particular business. The other major exception is in selecting a custody evaluator, discussed below.
Your attorney may use a tax advisor as a consultant only, or you may have an expert you expect to be used as a witness at trial. Your attorney may have an accountant who he or she works with on a continuing basis as tax questions arise in a case. You will probably use your own tax preparer for advice about the tax consequences of various property distributions.
Often, these two tax professionals each play a role in the case preparation and presentation. When it’s time to go to court, however, it is usually the attorney’s expert who renders the opinions. Your own tax preparer is not familiar with testifying and is especially reluctant to testify for one party in a divorce action in which he or she has worked for both in the past. Your own tax preparer might be used only as a percipient witness to testify about something questionable that was done in the past, and perhaps about why it was done that particular way.
When it comes to a child custody evaluation, the process to select an expert is much more subjective. Although the temporary custody and visitation arrangement for the children is already in place, you may be going to trial on the permanent custody issue and need an independent evaluation.
The child custody evaluator will interview the individual family members. Various groupings of family members will meet with the evaluator, usually the children and each parent, so the interaction can be observed. Psychological tests may be given, sometimes requiring a court order, if a personality disorder is suspected.
Participate in the selection of this expert. You will rely upon this person for the decision over which you have the least control. You’ll work with him or her more than any other expert. You must believe that this evaluator is receptive to your concerns, or you will be sure from the outset you will get nowhere. You must feel the evaluator is fair. You may not get the answer you want, so you must be sure at the very least that the right thing will be done for your children.
Your attorney should recommend someone to you as the child custody evaluator. Meet with the proposed evaluator before you make any commitment. If you’re not comfortable, ask for another recommendation, but don’t reject the first one just yet. You can’t expect to find someone who agrees everything should be your way. You’re really looking for someone who is open-minded, and that means he or she will be open-minded for your spouse also.
A dilemma exists. You want to bring only favorable evidence into court. However, if you bring in an expert who does nothing but praise your parenting skills and involvement and has never even met your spouse, the court is going to suspect the objectivity of this opinion. Don’t waste your time and money on a “hired gun.” The court will order you all out to an evaluator of its choosing if the decision is not clear and all you’ve brought in is paid-for testimony. Avoid this extra expense and strain: use the best evaluator available.
If your initial case evaluation appeared to require early preparation for child custody issues, you may have therapist testimony as suggested in Chapter Seven. Testimony from a therapist concerned only about the children is the most convincing to the court.