Working With Experts in Divorce

I. Types of Divorce Experts and What They Do

A child custody evaluation is a process in which a mental health expert, usually a psychologist, evaluates a family and makes a recommendation to the court for custody and visitation or a parenting plan that is in the child's best interests. The court may assign an evaluator to you or may allow you to choose from a list of evaluators. Regardless of who chooses the evaluator and who pays for the evaluation, the evaluator should be neutral and should not have a patient-therapist relationship with anyone in the family either before or after the evaluation. The evaluator is working to make a determination of the best interests of the child. The typical custody evaluation consists of interviews with each parent and the children; observation of parental interaction with each child in the office and potentially at home; psychological testing as necessary; review of court documents; interviews with people like teachers; and pediatricians and day care providers as necessary.

Once the evaluation process is complete, the evaluator will issue a report with recommendations regarding custody and visitation. Most evaluators will specifically address concerns raised by each parent in making recommendations.

Most people, when going through a collaborative divorce, wonder about what a divorce coach is and if it is different than a divorce attorney. Short answer is yes, they are different. A collaborative divorce coach can be defined as a licensed mental health professional. This can include: social worker, psychologist, or marriage/family therapist. To become an actual collaborative divorce coach, one must go through intense training and education. Also, each spouse may have their own coach to help them during the collaborative divorce (or they could be one employed for both). This can help the clients control their emotions and communicate more effectively with one another. After the divorce is settled, a collaborative divorce coach may keep helping their client.

While many seek an amicable resolution to their divorce, through a negotiated settlement or collaborative, the reality is that many cases cannot settle. For whatever reason, the parties are just not able to reach a comprehensive settlement on all issues related to their divorce or family law case. This results in many cases being litigated in court. Obtaining a positive outcome requires that evidence be presented in court through the presentation of admissible evidence and by witness testimony. The use of private investigators can be key in helping to bring forward such evidence and witnesses.

In divorce and family law cases, divorce attorneys often employ to private investigators to prove marital misconduct and/or adultery; show unsafe or harmful practices relative to the best interests of the children; serve crucial witnesses and opposing parties summons/subpoenas as a special process server; identify hidden financial and other assets; conducting surveillance; and substantiate untrue statements about income and employment. Private investigators are trained to help discover the truth and can immensely valuable. If you employ an investigator who does not have a rapport and working relationship with your attorney, you may end up losing valuable time and money. Worse case, it can also result in irrelevant evidence or inadmissible being obtained. This is why it is imperative to use a divorce or family law attorney who can get you to a private investigator that can assist.

In any property division proceeding, one of the most important things that needs to be done is to determine an accurate value of the marital home. In the vast majority of cases, the house is the single largest asset that the family owns, and knowing exactly what the house is worth prior to the beginning of the proceeding is of critical importance. Missouri is an equitable distribution state, which means that all marital property should be divided in a fair and equitable manner between the spouses. If one spouse gets the home, it can have a significant impact on how the rest of the property is distributed. By having an accurate value for the house, an attorney can be much more effective at protecting a client's interests through the rest of the process. Many lawyers are content to accept the information they find on the county assessor's website, which often varies greatly from the true value of a home. Instead, other attorneys work with experienced real estate appraisers to give an expert opinion on the actual value of the property. This is especially true in matters involving commercial and agricultural properties. Attorneys should work to gain access to a broad network of appraisers who specialize in specific types of property and can help to get an accurate value.

Valuing a professional practice in a divorce can be extremely difficult. However, business valuation experts will have the resources to do it effectively and efficiently. Business valuation experts work to gain an accurate picture of the value of a business. Doing this also helps determine the right strategy for property division and for moving forward after a divorce. One of the reasons valuation of a professional practice can be so challenging is that much of the value is in the individual's contribution, not in merchandise or interests that can be easily divided. Office furniture, outdated computer equipment, business libraries and accounts receivable seldom add up to the true value of the practice - the value brought by community goodwill developed from the intellectual and physical endeavors of the business owner.

Business valuation experts conduct extensive discovery. The business owner must often provide an extensive list of financial information. The owner must provide tax information, financial statements, balance sheets and reports. For professional practices, business owners must also produce counts of previous, existing and expected patients, practice demographics reports and equipment lists. Whether or not the business owner has a controlling interest is also a significant issue, potentially changing the value of a business from nothing to a significant amount.

As they pertain to family law issues, vocational examinations by way of vocational experts can be an important part of child support and spousal support proceedings. Essentially, vocational examinations involve a series of assessments designed to determine the earning potential of a spouse who is not working but is thought to be capable of doing so. Vocational examinations can be requested by either spouse. If a parent is seeking child support and their spouse is not working, he or she cannot make the payments needed to adequately care for the children. If a spouse has the education and skills to find employment, however, a vocational examination can identify career paths, available jobs the spouse would qualify for and an estimated income level. On the other hand, if a parent is paying excessive child support because their former spouse refuses to work, they could request a vocational examination to determine if he or she could qualify for some type of work that would allow for enough of a contribution to child support so they didn't have to carry the entire burden. In either situation, the outcome of the vocational examination can result in the court ordering an unemployed or underemployed spouse to secure employment in line with his or her capabilities. If he or she fails to do so, the court can award child support based on the level of income the spouse could be making. This is commonly referred to as imputing income.

Unfortunately, a divorce can often result in a loss of trust between the parties on financial issues. This loss of trust can result in the use of forensic accounting and other resources to get to the bottom of the other's spouses finances. This is especially true if a spouse suspects that the other may be hiding assets or income. In other situations, CPAs, forensic accountants and other experts can be important for identifying a client's exclusive right to separate, non-marital property. Allegations of hidden assets or disputes over separate or marital property can be an important issue. Forensic experts can help with high net worth divorce, including representation of business owners and their spouses, as well as others with high net worth and ability to hide income. Forensic accountants can also help with identifying income from a closely held business or professional practice to see if any of it has been concealed or transferred elsewhere, determining if assets have been squandered, encumbered, concealed or hidden in anticipation of divorce proceedings, and helping trace funds owned prior to the marriage to determine if it is separate property and, therefore, belonging to one spouse alone.

There can be a number of times when one or both spouses may be asked to undergo a psychological evaluation. Divorce involves several key areas where the spouses' psychological conditions are of critical importance to the decisions that are made before the divorce is finalized. Perhaps nowhere is this more critical than with issues regarding child custody. In many cases, a psychological evaluation may be ordered when there are allegations of physical or sexual abuse. In the context of a custody hearing, every precaution must be taken to ensure the safety of the child. A psychological evaluation provides some insight into the state of mind of the person seeking custody. Evaluations can be used to determine if a person is fit to be a parent, if there is likelihood for future violence and many other considerations. The outcome of the evaluations can greatly impact the course of action we take in the case. Attorneys should closely review all evaluation results to see how they could be used at trial and if they need to adjust their approach to the case.

In some divorce cases involving child custody, and other child custody and visitation disputes, the court may require an attorney to represent the interests of the child in order to make a final recommendation to the Court. Called a guardian ad litem, the representative will work with the child and other parties in the child's life to determine what those interests might be. Since children cannot legally represent themselves in court, the court will appoint a guardian ad litem, which is a lawyer to protect the child's best interests. A guardian ad litem is often appointed in cases where a parent is determined mentally unfit to protect a child's best interests when working out a parenting plan or when abuse or neglect is alleged. The court may also appoint a guardian ad litem in cases where a parenting plan is highly disputed between divorcing parents. Typical issues include: Grandparent visitation and other third party access (relatives, friends, etc.); Primary custody vs. shared custody; Equal parenting time; Vacation schedules and holidays; and Disputes regarding legal custody and decision-making authority.

In general, a guardian ad litem, also known as a GAL, is an attorney who is appointed by the court to represent the interests of a child or an incompetent adult. The child or incompetent adult is then referred to as the "ward." The GAL's role is to conduct an investigation and provide a recommendation to the court about what is in the ward's best interests. Under Missouri law, the court can appoint a GAL in any family court proceeding where child custody, visitation rights, or support is at issue. This includes both divorce and child custody cases. A court will also appoint a GAL in cases where child abuse or neglect has been alleged.

While GALs are typically appointed to represent the best interests of a child, GALs sometimes appointed to represent an adult who has been declared incompetent. Legally speaking, incompetence means that the adult lacks the capacity to represent his or her own interests in court. GALs may also be appointed in custody cases where the parent is also a minor. Once a GAL is appointed in a case, he or she must meet certain requirements. First, the GAL must appear at court hearings to represent the ward's interests. At the hearing, the GAL can offer testimony and can also examine and cross-examine witnesses. Prior to the hearing, the GAL must take appropriate steps to determine the ward's wishes and feelings. To do so, the GAL may interview the ward and/or any other people who have contact with or are otherwise familiar with the ward. The GAL must also request a petition to be filed with the juvenile court if the ward is a child who is alleged to have been abused, neglected, or in danger.

If a GAL has been appointed in your case, the parties may not be required to pay his or her fees. Depending on factors such as income and the income of any other parties involved in the case, the state may pay the GAL's fees. On the other hand, if a party's income exceeds the threshold, they may be required to pay the GAL at an hourly rate. A GAL plays a crucial role in family law cases and often, judges will give a GAL's recommendations heavy weight in their ultimate decision in the case.

The use of Parenting Coordinators is a fairly new and novel way to help manage high-conflict custody cases where the parents have proven themselves unable to resolve disputes on their own regarding parenting and visitation issues. When a Parent Coordinator is agreed upon, parents hire a clinician to essentially mediate, but ultimately arbitrate, ongoing child-related disputes either by private agreement or through incorporation by consent into a court order. To help resolve disputes, the Parent Coordinator works directly with the parents to help them communicate more effectively and avoid conflicts about child-related issues. Parents who are constantly in court about child-related issues (albeit visitation or decision-making issues regarding the upbringing of the children) might reduce the need for adversarial proceedings in court by having a Parent Coordinator. Explained another way, the Parent Coordinator mediates issues, and when the parents are unable to agree, the Parent Coordinator is given the power to make a final decision when the parents cannot agree.

Ultimately, the court has the final say over child custody and visitation issues, but a Parenting Coordinator can drastically reduce the need to go to court, which can help reduce conflict for the children in families involved in such disputes. Ultimately, a Parent Coordinator can only be enlisted in some states by consent of the parties. As the law currently stands in some states (but not all), the Court cannot order it in some states unless both parties agree.

II. Cost-Benefit Analysis: Is Hiring an Expert Financially Viable?

The cost of using an expert varies greatly, from a free phone call to an accountant to answer a question, to a few hundred dollars for an appraisal of a home, to thousands of dollars for trial testimony. In most cases, using an expert can be a cost effective way to resolve certain issues early in a case. Parties can agree to share the cost of an expert appraiser to value a home or pension, and once the value is set, they can agree on how to divide the asset. If you know a value of an asset early on, you can easily avoid spending unnecessary legal fees and costs debating the issue.

On the other hand, particularly cases where there are dueling experts offering conflicting opinion, the cost of expert witnesses can be extraordinarily steep. Some forensic evaluations in custody proceedings or business evaluations can cost tens of thousands of dollars, even when only paying for the opinion of a neutral expert. That expense is compounded significantly if there is a need to hire an independent expert to review the report for errors, and perhaps to offer testimony on behalf of a party. It is important to discuss the options on using expert witness with your attorney early on in your case. Not every case calls for the use of an expert, and certainly not every case calls for the costly use of experts, but if a case does need one, know at the outset so that you can be properly prepared.

Expert witnesses can be retained by either spouse or can be appointed by the court. Usually, if someone seeks to hire an expert, the lawyer will select, contact, negotiate with, engage and pay the expert. Be aware that a written compensation agreement is of utmost importance, as it provides all the terms agreed upon by both the party and the expert. The agreement should provide a clear statement of whether you or your attorney is responsible for the expert's payment. Occasionally a judge may unilaterally appoint an expert. In that case, the court can select its own expert or it may appoint an expert that both parties have agreed upon. By law, a court appointed expert must be informed of his duties in writing and he must advise both parties of any findings or conclusions he has come to. Additionally, both parties may depose an expert appointed by the court (without a court order) and may call the expert to testify at court.

In addition to a provision indicating who is responsible for paying the expert, the written agreement also should spell out exactly how the expert will be compensated. Experts can charge a straight hourly rate or they can charge a lump sum fee (generally for specified services). Additionally, for services such as depositions or appearing at trial, some experts increase their hourly rate or charge by the half-day or day. The compensation rate is usually based on such factors as the experience of the expert and the nature of the task assigned. It is general practice that the agreement will also state when the payment is due. The terms of the agreement may reflect that the expert's fee is due up front, or that fees for services will be billed as the expert proceeds, or that the payment is due in full after all services are rendered. The terms of the agreement should control all aspects of the expert's compensation.

As a side note, an agreement to pay the fees of an expert witness cannot be based on contingency - meaning that it is not permissible to enter into an agreement with an expert whereby the expert is only paid if you prevail at trial. All that is to say, be sure you are aware of the payment terms in the agreement executed by your expert witness. You should be aware of how much the expert charges, who should be paying the expert, and how payment is structured.

There is another aspect of payment that should be addressed, and that is that in some instances expert fees will be paid by the losing party. By statute, the court has discretion to order the losing party in litigation to pay certain expenses called taxable costs. Taxable costs is a term of art that simply means litigation-related expenses that the winning party is entitled to as a part of the court's award. With regard to expert fees, a judge can assess and award costs for reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings. This is limited to only the fees associated with the expert's time providing testimony at trial, deposition, or other proceedings. Additionally, in order for the court to award expert fees, the expert must have been subpoenaed. So, if you plan on using an expert to testify in your proceeding, and are hoping to recoup taxable costs, make sure the expert is sent a subpoena.

The court cannot assess and award the costs of expert witness fees for preparation time. Therefore, in order for an expert witness to ensure payment for time spent researching and developing an opinion prior to a deposition or trial, a compensation agreement is vital.

III. Funding Experts and Sample Retainer Agreements

The retaining of these experts can create a substantial financial burden on each litigant especially where the experts are deposed and actually appear and testify in court. A $2,5000.00 - $5,000.00 retainer is often only the beginning of such costs. Often, retainers are much higher. As a result, litigants may choose to use the same expert witness trusting his/her skills and integrity, in order to minimize the costs of litigation. However this requires cooperative parties and experienced attorneys who have long standing relationships and experience with the experts used by the court.

The court on its own motion, even after hearing testimony of each parties' expert may choose to appoint its own expert witness and allocate the costs to each litigant however it wishes. Generally, each party is initially ordered to advance one-half of the cost of the court's expert subject to reallocation at the time of trial. Meanwhile, the trial or hearing is continued and the costs of the divorce increases dramatically.

A divorce can become a battle of dueling experts where the opinions of accountants, psychologists, and vocational experts are offered in support of a litigant's case. For this reason alone, an experienced family law attorney is necessary at the outset not only to determine the necessity of an expert witness but also to choose the "right" expert, one whose education, experience and reputation qualifies him/her to analyze and offer an expert opinion that will assist the court in making a decision that will serve the client's interests. But, that still leaves the primary question unanswered: Can you afford to retain and pay for the testimony of an expert witness? Remember you often get what you pay for in a case.


Philip Stahl, Ph.D., Anatomy of a Child Custody Evaluation, 22 Family Advocate, A Practical Journal (2015).

Francine Pickett Cohen, Use of Experts in Divorce Proceedings, Francine Cohen, Esq. on Divorce in New York, (April 1, 2012), http://francinecohen.com/wordpress1/2012/04/01/use-of-experts-in-divorce-proceedings/.

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Rosen Law Firm, What is an Expert Witness?, The Rosen Law Firm, North Carolina Divorce, https://www.rosen.com/childcustody/carticles/expert-witnesses-family-law-disputes/.

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Barry J Wishart, Divorce and Expert Witnesses, LA Family.com, http://www.lafamily.com/marriage-and-divorce/divorce-doctors/divorce-and-expert-witnesses/.

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