NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

If you have never been through the process of a divorce yourself you may not know how, at the end of the day, things are actually decided. For example, how do attorneys or the court calculate how much of a spouse's pension or 401(k) gets divided?  How do attorneys or the court calculate the value of real property? Experts are obtained to appraise assets in order to obtain values.  Often parties each get their own experts and their are dueling appraisals.  If the parties cannot agree on a value, a court will have to hear testimony from both experts and make the call.

That was an issue that was recently addressed in the published Appellate Division decision of Pansini Custom Design Associates, LLC and Roger Parkin Joint Venture v. City of Ocean City and Patrick Newton and Saving Our Station Coalition, A-2003-07T1, decided May 14, 2009.

Many people who go through the process of divorce own real property.  If parties are unable to reach an agreement as to the value of real property owned so as to determine how much each may be entitled to, how does the issue get resolved?  Typically, the parties may either retain a joint real estate appraiser or each obtain their own real estate appraiser who will create an appraisal.  In the latter scenario, the result may be competing real estate appraisals and values.  If no resolution is reached among the parties and the issue is left to a court to decide in a trial, the importance and validity of these real estate appraisals will be tested.

There are experts available on nearly every topic if you look hard enough.  In family law, real estate experts abound.  Many attorneys have their "go to" experts or others who may solicit them for business.  No matter what, whatever expert is involved in your matter should be selected with thought and consideration to the specific facts of your case and the ultimate goals of the clients they work for.

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 Last week I spoke at a seminar for family lawyers on the topic of discovery and experts in the current economic environment. As we wade through this financial crisis, the cost of a divorce, or other family litigation is yet another area in which we must look carefully at how we allocate our clients’ limited resources. 

The discovery phase of litigation is one in which a client can help his or her lawyer to effectively allocate limited resources simply by being organized and making sure that the attorney gets needed information early on in the process. For example, in every divorce, past bank statements and credit card bills will be requested. Financial institutions are charging significant fees in order to process requests for documents. On the other hand, an account holder can most often obtain statements as well as cancelled check images dating back eighteen months or longer. The simple act of asking your clients to obtain these statements early on can decrease costs. Similarly, if any records can be obtained electronically, this can save on copying costs (and save a few trees along the way).

Early and succinct communication with adversaries and experts are also a necessity. Often, litigants each jump to retain their own experts at the start of a case. Certainly, this is very often necessary. However, there are often cases in which a joint expert can perform the work. In some cases, where there is a significant valuation issue, it may make sense to have a joint expert perform the empirical work, and each litigant can hire their own expert to analyze the data.

Custody disputes are another area in which litigants often spend unnecessary amounts of fees. Sometimes, custody evaluations costing in the tens of thousands of dollars are conducted out of anger at the other party more than a bona fide concern about custody. In some counties in New Jersey, Custody Neutral Assessments (CNA’s) are being utilized. These are assessments by a licensed psychologist who has been appointed by the Court to spend four hours with the parties and if appropriate, the children, and provide the litigants with impressions about the custody/parenting time aspects of the case. In many instances, the litigants will read the impressions, get a sense of where the case is going and then will be able to resolve the case.

This is not an exhaustive list, but merely some thoughts on how an attorney can work with the client and be sensitive to the financial realities that we are experiencing. An open conversation with your attorney as well as a willingness to explore some innovative methods of obtaining information can, in many cases, relieve some of the pressure.

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Early on in a case, the lawyer and client will have to determine what experts will be necesary to resolve a case either for settlement or trial.  In fact, at the first Case Management Conference, the uniform Case Management Order requires that you identify the types of experts you need and how they are going to be paid for. 

What is an expert and why do we need them?  Per the Rules of Evidence, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."  Simply put, an expert is a tool to help determine a fact.  Experts provide information that the parties cannot generally provide themselves.

What kind of experts are used in these cases?  The following are some examples:

• Forensic accountants to value busineses, determine actual income, trace income and assets (including tracing premarital assets), to provide lifestyle analysis, to provide cash flow reports based upon proposed alimony and child support scenarios and a variety of other financial related issues,
• Business valuation experts (sometimes they are not accountants)
• Experts to value stock options or other exployee benefits - often but not always accountants
• custody evaluators - usually forensic psychologists, but occasionally forsensic psychiatrists and social workers, who will give an opinion of custody and parenting time
• educational experts - to determine which school or school district is better, what program is better, public vs. private school issues, educations issues regarding children with special needs
• employability experts  - to determine what someone can and/or should be earning.
• pension appraisers - usually actuaries, to determine the value of a pension, parse out premarital shares of 401ks, and draft Qualified Domestic Relations Orders
• Real estate appraisers
• personal property appraisers
• jewelry appraisers
• art, coin, antique appraisers
• medical doctors - to assess disabilities or sometimes personal injuries
• handwriting experts
• computer forensics
• Interpreting services (for documents in foreign languages)
• experts to value intellectual property

There are probably many other types of experts.  This list does not even include other professionals that may help the parties, but probably not testify, like financial planners, stock brokers, insurance agents, parent coordinators, reunification therapists or for that matter any treating therapists.

Over the years, we have worked with most or all of these types of experts as the need has arisen.  Should an issue requiring an expert come up in one of our client's cases, we are well equipped to handle it.

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I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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