It is important to understand that not every case warrants the use of experts and you should fully discuss how experts might be employed in your particular case, with your lawyer.
An expert is a person who has particular education, training and qualifications to provide assistance to the parties and court. The Colorado Rules of Evidence, Rule 702, describes the basic function and role of experts:
“Rule 702. Testimony of Experts
If scientific, technical, or other specialized knowledge will assist the trier of
fact [judge] to understand the evidence or to 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.”
When experts are hired in Divorce cases, the expert who will be asked to testify must be properly disclosed to the other side. The failure to properly disclose an expert witness may result in that expert’s testimony being excluded by the court or the information about which the expert has given to a party being stricken. Some experts require the entry of a court order that allows the expert to be “appointed.”
In almost every situation, witnesses who testify in court are required to have personal knowledge of certain facts before they are permitted to give opinion testimony. However, when an expert has been properly qualified, the expert may be called upon to give expert opinion testimony that is based on facts, documents, information, etc. that the experts has relied upon in giving opinions. Before the expert is permitted to testify, the court must make a ruling that the expert is qualified to give expert opinion testimony and is not testifying as a layperson.
I. PARENTING EXPERTS:
There are many qualified parenting experts in Colorado. These parenting experts perform an invaluable service to families, children and the courts. The appointment of a parenting expert requires a court order. Court orders appointing parenting experts will set out the manner in which the expert is to be paid in order for the expert to commence work on any given case. Parenting experts will be charged with the responsibility of interviewing the children and the parents, receiving vital relevant documents, conducting an investigation and evaluation as to the “best interests of the children, and obtaining statements from witnesses and others, and ultimately, making written recommendations to the judge and parties. These expert are described in Colorado law:
- Parental Responsibilities Evaluator (“PRE”;
- Child and Family Investigator (“CFI”);
- Child’s Legal Representative (“CLR);
Colorado law sets out the specific manner in which parenting experts may be utilized in any Family Law or Domestic Relations cases. As described in, “The Role of the CFI and the CLR in Colorado,” parenting experts have a specially recognized importance: “The Court is authorized to appoint a child and family investigator (CFI, formerly special advocate) and/or child’s legal representative (CLR) who investigates and provides ‘best interests’ recommendations in Title 14 domestic cases.” There are obvious situations where parenting experts are most utilized by the Family Court:
a. Physical, emotional, or developmental abuse or neglect of children;
b. Mental health of a parent or a child;
c. Alcohol and substance abuse of a parent;
d. Domestic Abuse or Domestic Violence by a parent;
e. Crime(s) of violence by a parent;
When a parenting expert is appointed, both parents are expected to fully cooperate with the expert. This means that parents are responsible for scheduling all necessary appointments with the expert, providing requested information and necessary releases; being fully honest in providing information that is being gathered by the expert; submit to anger management or co-parenting classes; obtain drug or alcohol testing; and a variety of other assignments that the expert wants or needs. When a parent refuses to cooperate with a parenting expert, the court has the ability to issue further orders.
When a parenting expert has finished their evaluation and investigation, the expert will file a written report with the court. The judge in the case will read the report and will note the filing of the report into the record. All parenting experts are required to make specific recommendations to the judge that are in the “children’s best interests.” Those recommendations generally may include:
- Allocation of specific parenting time and holiday parenting time;
- Decision making;
- Designation if needed of the majority parent;
- Follow up requirements suggested to the Court, such as co-parenting classes, anger management classes, individual therapy, substance abuse or alcohol testing and classes, etc.
II. FORENSIC ACCOUNTANT/ECONOMIC EXPERT
Financial Experts are extremely important in some Divorce actions. The parties in Divorce cases may use a Forensic Accountant or Economic Expert, for a variety of reasons. These experts possess highly qualified skills in the specific area of Family Law. Such experts have a great deal of knowledge, background, qualifications, tax and testimony expertise, as well as a thorough understanding of the Domestic Relations laws in Colorado and how those apply to the parties’ financial situation or the legal issues in any given case.
By having a Forensic CPA involved as an expert, the rules provide that the expert can be an expert of just one of the parties, or a mutual expert who can provide documents and opinions to both parties. Once a Forensic CPA is designated as an expert, the rules require that the expert must be disclosed and there will be time deadlines for the filing and exchange of all written expert reports.
A Forensic CPA, in Divorce cases, should have a wealth of knowledge in reading and analyzing financial statements of the parties, banking and investment statements, applicable tax law, performing valuations of business interests, analyzing credit card and loan statements, and preparing Marital Spreadsheets of assets and debts, formulating spreadsheets regarding the Spousal Maintenance and Child Support guidelines, and other critical analysis. Meetings between the Forensic CPA and counsel and their client, will establish the goals of the financial expert and the need for documentation to assist the expert in the case. I have found that having a Forensic CPA who is also an expert on Tax Law, has served as a tremendous benefit to my clients in a variety of ways.
Since Forensic CPA’s and Economic Experts in Divorce cases are specialized, it is always a great idea to have communications with your lawyer about the manner and method that these experts can be best utilized. I have found in my practice that many more cases settle when there is a Forensic CPA, than those cases where the parties did not rely on any financial expertise. This is so, because in the preparation of Marital Spreadsheets, there is a straightforward document that lays out all property/assets and debts and includes an equalization amount as to how the marital estate should be, “fairly and equitably” divided.
An appraiser may be an expert in a Divorce case, where the value of personal property or real property is in dispute. I have had many cases where it is necessary to value personal property such as classic cars, jewelry, antiques, collectables, artwork, etc. By having an expert appraiser’s report, it will greatly assist the court in understanding the value of those disputed properties.
The most common expert, in divorce cases, is an appraiser in the field of real estate. Expert real estate appraisers may be called upon to value land, residential or business properties. This is particularly critical where the parties have come into the marriage, already owning homes, condominiums or land and there is a question as to the amount that those properties increased in value, over the course of the marriage. Appraisers are usually given all relevant information as to the real properties, such as deeds, mortgage balances and recent sales transactions, so that they can provide a valuation of real estate that is as accurate as possible.
The most common question, divorcing parties ask is, “What will happen to the marital residence or home.” If one of the parties wishes to keep the house and “buy-out” the other parties’ interest, it is important to determine the value of the house and how much equity there is in the house. As an example, when an appraiser states that a house has a Fair Market Value of $300,000 and has a mortgage with a payoff balance of $100,000 this means that there is equity in the house of $200,000. When one of the parties agrees to remove the other spouse from the mortgage and “buy-out” the other party’s interest, it usually requires that the equity payment of $100,000 will be made to the other spouse on the date of the closing on the refinance of the mortgage. Real estate appraisers can also be of assistance when parties have agreed to a sale of the marital residence and want to know the value of the house as a negotiating tool in the final division of all marital property and debts.
In some cases, parties have agreed to have a real estate agent or broker in their Divorce case, to conduct a Comparative Market Analysis (“COMP”). Realtors who perform this evaluation based upon the Fair Market Value of real property, often times charge far less than real estate appraisers do.
If you are involved in a Divorce matter or planning for a divorce at some time in the future and you have considerable assets and/or debts, the assistance of an appropriate expert may be the best move you and your legal team can make.