Some divorces are fairly easy and straightforward to resolve. If both sides can substantially agree on all of the important issues, you might only need the assistance of a family law attorney to make sure your case is handled in a fair and equitable way.
But there are other divorces that are complicated and can involve heated child custody, alimony, or asset valuation and division issues. When these things cannot be resolved amicably, the smart course of action may be to bring in subject matter expert witnesses to get accurate and thorough answers to help resolve differences.
For answers on when it makes sense to retain the services of expert witnesses in a divorce, I spoke with divorce attorney and Certified Family Law Specialist Travis Krepelka.
What is an expert witness?
Travis Krepelka: An expert witness is somebody who has specialized training or knowledge or abilities outside of your average person.
Your average person can observe things … I can say, “I’ve got a headache, and my pain is a six on a scale of one to 10.” And an expert can say, “Let me do some MRI’s, and you’ve got a benign mass on your brain.”
Or I can look at a house and say, “That house is really pretty. It looks bigger than mine. I’ll bet you it’s more expensive than mine.” An expert appraiser can come in and say, “Well, with my home inspection and the foundational issues that we’ve discovered, it turns out that this is a tear down.”
An expert witness is a person with specialized training, knowledge or experience who is going to come into court and be allowed to render an opinion, as opposed to simply relaying facts.
When is an expert witness used in divorce cases? How do you know if you need an expert witness?
Most people, I think, under-value and under-utilize experts. My experience is that I’m the one who is spotting issues and telling my clients that an expert is crucial for our case.
From my experience, the most common expert witnesses are the family law litigation support CPA’s, commonly referred to as forensic CPA’s, although not all of the work they help us with is forensic accounting.
Those people are super valuable and can do so many things in a case. They can help properly prepare disclosures of income and expenses, assets and debts. They can run spousal support and child support calculations for us. They can give us marital standard of living analyses, quantifying for spousal support purposes be determining monetarily how do these people live?
They can do business valuations for us. They can keep just an ongoing master table, spreadsheet, tracking all claims. That may include things like reimbursement claims for paying for children’s child care because so-and-so owes the other spouse eight grand. Also on the list is the house, and it’s just a master Excel spreadsheet that we can bring to bear.
When you bring on that type of expert, all you’re really doing is shifting what you would otherwise have to pay me or someone like me over to someone else, so it doesn’t create duplicative work.
Somebody has to do that work, and around here it’s going to be someone billing anywhere from $250 to $450 an hour, whether that person’s an attorney or a CPA like I’m talking about, who does this kind of work. The benefit is that you get the work done.
I would take longer to do it, because it’s not the primary thing that I do all day, every day, so it would take me longer, and therefore cost you more money. Also, I would do it worse, because I’m not as good at it because I don’t do it every day, so you get lesser product for more money.
And, when push comes to shove, if I did the analyses, I could take those into the settlement room for negotiation purposes, but if we have to go to court I can’t testify in court. So, we’re left with a spreadsheet that I created, which is a worse product for the money that we’re not allowed to use when we go to court.
It sounds like a smart move to bring in an expert in that situation.
Absolutely. The earlier the better. Experts can also help guide us in discovery. That’s another big piece where I like to use them, which is what documents do we need to obtain to figure out this puzzle, and who do we get them from?
Do we get them from our own clients? Do we get them from a bank by subpoena, or do we have to get them from the other side?
What are the types of professionals that testify as expert witnesses in divorce?
In a roughly prioritized list, I would say that the most common testifying experts are forensic accountants. Next up would be the custody evaluators, the people trained in child development and analyzing the best interests of children. I like the people with PhD’s, but a lot of them are also just MFTs (marriage and family therapists). They’re probably the next most common class of experts that end up coming into court.
Moving down from there, real estate appraisers are probably next up to come in and testify in court. And then on from that, you have medical experts. A lot of the times someone’s real or claimed medical condition might be presented as an obstruction to earning at a certain capacity or working in a certain field, and the person claims that they’re too sick to work and so you have to get an independent medical examination.
There are also school comparison experts for custody issues.
On a case-by-case basis, sometimes a client has needs that pop up where I’ve used an even more specialized expert. But between forensic CPAs and custody evaluators, that’s over 90% of the expert witnesses that I access as needed.
When is a child custody evaluation needed?
Custody evaluations are an interesting beast. If a divorce is going to be bitter and nasty and therefore expensive, it’s probably over custody.
After they cool off, after the initial separation and anger and hurt, most people have the ability to recognize that I should not spend $50,000 to try to recover 10. There is no value on kids, and everybody, quite rightly, loves the hell out of their kids and values them incalculably, and wants them all for themselves.
So, you get a lot of selfish, very me-focused decision making, not kid-focused decision making.
If you’re having a custody dispute, we have to be talking about whether or not to have a custody evaluation. And how that shakes out will depend on your judge.
So, let’s say we have a dispute. Each parent claims to want primary custody and claims it’s in the children’s best interest to live almost always with that parent. They’re both making that case. At that point, we have to talk about whether or not we need a custody evaluation.
We don’t have any control over our judge and our judge is going to be one who either prefers custody evaluations or one who doesn’t. Some judges prefer there to be an evaluation because it takes a lot of the pressure off the judge. They know that three months from now they’re going to get recommendations from a professional, who certainly is neutral, professional, and well-meaning.
That evaluator is truly going to believe that what he or she is recommending is best for these kids. The judge knows that they’ll get that report, and if they just adopt that report they probably can do no wrong throughout the course of a career on the bench.
On the whole, most judges are on that side of the ledger. They prefer the custody evaluation, because I think it takes some heat off of the judge. I can’t say that I wouldn’t feel the same way.
There are also some judges who are resistant to them for a variety of reasons. Evaluations take a lot of time and they’re very expensive, and the judges recognize that that’s not good for folks. It’s not good for them to be caught up in a drawn-out process. It’s not good for them to spend all this money that they don’t really have that could be going to their kids’ college.
A lot of judges who are resistant to custody evaluations don’t like having the reins taken out of their hands. They say, “No, this is my call to make and let’s do it three weeks from now. Let me have an hour. Let me see dad testify, mom testify. Let me hear from the teacher at school, and I’ll make a decision.”
If you have one of the judges who does tend to prefer them, they may first ask can these people afford it? How is it going to be paid for? I mean, you need $15,000 to $20,000 minimum to get a quality custody evaluation.
Also, I think I said three months, but honestly, it’s more like six to eight to get those done. So, does this case have the resources to pay the evaluator and the attorneys all along the way who have to be closely involved in that process?
To me, I’m going to sticker shock people a little bit, so I admit that I’m exaggerating a little, but I would say, “You need to be prepared to spend $40,000 and a year of added costs and added delay to your case if you want to pursue a custody evaluation.”
Is that for the evaluation itself, or kind of taking that whole process through?
The whole process. I’m counting the fees for the evaluator, for the attorneys over the course of that year, and all the court appearances that have to happen along the way. It also includes the meetings with the evaluator, preparing the client, and bringing in the school comparison expert to supply a report to the evaluator.
I don’t think that number is actually too far off so it’s a decision that should not be made lightly. A lot of people say, “Oh, let’s get an evaluation and then we’ll have answers.”
That’s okay, just make sure you know what you’re signing up for.
What is a vocational evaluator? When is a vocational evaluation needed?
I would probably place the vocational evaluators right up there with appraisers in terms of that second tier of most common type of expert witnesses.
California law is very, very clear both in statute and case law that it is the public policy of the State of California that if spousal support or child support is at issue, then both sides have the obligation to exercise all of their best faith efforts to be working full time at their highest earning capacity.
Those are all the buzz words of the law, the statutes and case law. So, what you have then, are disputes about what is somebody’s earning capacity?
Let’s say someone has been out of the workforce for 12 years and has an associate’s degree. What are the best faith efforts to get them to working full time at their highest earning capacity? Do they need to finish off a bachelor’s degree and take a couple of years to do that? Do they need to go straight out and pound the pavement looking for a job? What jobs are available? How much could this person make?
Because what we often find is that whether the person is the one paying support or receiving support, very few people have the emotional bandwidth and energy to just go, “Okay, I understand that’s the policy, let me throw myself wholeheartedly into maximizing myself in the workforce.”
It just doesn’t happen that often. If the person does not get to work full time at their highest earning capacity relatively quickly, for support purposes the court will do what is called imputing income.
Can you give an example of how that works?
The court will say, “Okay, I believe you should be working and could be working right now making $85,000 a year. You’re not, but I’m going to run support now as though you were, and I’m going to make you either pay or receive support as though you’re making $85,000 a year.”
That’s called imputing income, and that number cannot just be snatched out of thin air. So that’s another thing that a vocational expert can bring to bear.
They can say, “I’ve met with this person. We’ve administered all these various tests and personality tests and job preference tests to figure out what they’re best suited for. I’ve looked at the local markets, here’s all the jobs available in those different fields, and here’s what you would earn after three, five, seven, 12 years, as a median income in all those fields.”
Do you have any tips for clients to best work with an expert regardless of the type in the most effective way? Perhaps it might be from a cost perspective, from not messing things up from a litigation perspective, or in other related capacities?
If the expert is your expert, my tips apply for both the expert and for your attorney, which is you’re paying us by the hour, and we’re doing a job for you to maximize some return for you, or some result in court, so do what we say when we say it.
If we send you a list of 10 documents that we need, give us the 10 documents. Don’t ask us necessarily why we need them. Don’t say, “Oh, can’t you get that from my ex.” Don’t give them to us upside down and backwards and in an inverted order. The more a client can do the laboring, the more cost-effective their case will be.
That’s tip number one, supply the expert with what he or she asks for as quickly as you can get it in as beautifully organized and perfect a fashion as you can. That goes for experts and for your attorneys.
Sometimes it will happen that you are working with the opposing expert. Let’s say it’s an independent medical examination that’s being done to you because of your own claimed health condition, or it’s the other side’s CPA who’s evaluating your business and they have to be given access to your business and your premises and your books to do that, or it’s a vocational evaluator who’s assessing your earning capacity.
You might think of them as the enemy, but you’re only going to guarantee that if you treat them like that. You need to respond to their phone calls on time, be respectful, be cordial, show up for the meetings on time, don’t argue with why they need that information or why or they are asking this question.
Don’t try to win your case against them. Just cooperate and go along and answer all their questions.
You don’t ever want to provide the other side with ammunition where the expert up and says, “Well, I found the husband very resistant to this process. He definitely didn’t want me there. He wasn’t very responsive.”
Boom! The judge is already looking at that person as angry. You just need to cooperate in a timely fashion.