Print Posted by Damon Bivek on 03/27/2017

Tip the Scales in Your Favor: Expert Witnesses and Divorce Trials

Tip the Scales in Your Favor:  Expert Witnesses and Divorce Trials

Not every divorce trial needs expert witnesses, but when used effectively they can sway the course of a trial in favor of one party over the other.  Divorce cases involving complex estates, medical issues, alimony or hidden money may require the use of an expert witness.

The primary categories of expert witnesses for divorce are business valuation experts, forensic accountant experts, certified divorce financial analysts, medical doctors, vocational experts who specialize in employability and skills of a particular person, child custody evaluators, therapists, private investigators and psychologists.


Business Valuation Expert

In cases where one or both spouses own a business, the valuation and division of that business can become a contentious issue in a divorce. The Courts in Georgia have held that dental practices, medical practices, franchises, and other businesses not in the nature of professional services, have a value that is subject to equitable division in a divorce. There are three principal methods for determining the value of a business:

(1) The income or capitalized earnings methods,

(2) The market approach method, and

(3) The cost approach method.

The trial court has the discretion to choose which valuation method it will apply. Sullivan v. Sullivan, 295 GA. 24 (2014)   In order to determine if there is a business with a value that is subject to equitable division in a divorce, it can be very useful to hire a certified business valuation expert. While the Courts typically award ownership of the business to one of the spouses, the other spouse can be compensated with other marital assets to offset the value of the business.  Some of these include a marital residence, retirement assets, liquid assets in savings or investment accounts, or payments in the form of non-taxable alimony.  Having an attorney advise you whether or not there is a cost-benefit to doing so, is a good first step in deciding whether or not your case may need a business valuation expert.

 

Forensic Accountant

In cases where one spouse is hiding money or may be spending money in secret without the other spouse’s approval, a forensic accountant can be very useful.  Forensic accountants can trace spending to third parties, and provide effective testimony in Court about said spending. They can assemble a paper trail to corroborate their testimony which can be very effective in Court, and damaging to the perpetrating spouse. Judges have great discretion in determining what is an equitable division of a marital estate, and if one spouse is spending money outside of the family without the other spouse’s consent or knowledge, the Judge may award the adversely affected spouse a much larger share of the marital estate to compensate him or her for the money that the other spouse spent outside of the marriage.

 

Vocational Expert

In cases involving requests for alimony, vocational experts can help determine what a spouse may or may not be qualified to do. Vocational experts can be effective in educating and informing Judges about a particular spouse’s earning potential, and then testifying about that earning potential or lack thereof. Vocational experts can help Courts to understand how being out of the workforce for awhile, and having limited experience, can impact someone’s ability to get a job. They can help a Judge understand if someone requires additional education or time to be able to obtain suitable employment and become self-supportive.


Child Psychologist/Counselor

In cases where child custody is contested, Courts often like to hear from child psychologists or counselors as expert witnesses to learn what may be in the best interests of the child in terms of visitation time with each spouse. Using an expert in the field of child psychology can help the parties come up with a child-centered plan, rather than a plan that may self-serve one of the parents. Parenting plans crafted with the help of experts can minimize behavioral issues that may surface in children as a result of divorce.


Experts have credibility with the Court because of their specialized knowledge and expertise. You should speak with your attorney about what experts may be appropriate for your case, and how they can add value to your case.  Expert witnesses are allowed to testify about they have learned from third party sources, which helps to navigate around hearsay objections, and using an expert effectively can help avoid having to subpoena several different witnesses.

Oftentimes, the divorce process requires the help of several people in different industries to get the best result possible. Using expert witnesses in different fields during a court proceeding can be an excellent way to gain some leverage in hotly contested trials. When hiring a divorce attorney, it is important to ask whether or not they have experience in utilizing and working with expert witnesses.


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Damon is a founding partner of Bivek Brubaker & Prescott, LLC.  He has clerked for the Supreme Court of Georgia, served as the President of the Family Law Section of the Cobb County Bar Association, and leads a Family Law Workshop at the Cobb County Superior Court. 

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