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Using Experts

Some information needed to settle your divorce might not be readily available. For instance, if you need the value of your home or business, you'll need to hire an expert to figure it out. Ordinarily, you wouldn't have this value available unless you had recently done some refinancing or sold or purchased the home or business. Or maybe you need an expert to help you come up with the best parenting plan for your children. Maybe you need an expert because your spouse hasn't worked more than part time for several years, and the two of you need to know what your spouse's earning potential is and how to achieve it. Or maybe you need someone to figure out your stock options or the investment you made in rental properties with inherited money.

All these areas call for the opinion of an expert: a certified public accountant, a Realtor, a psychologist, a business evaluator, or a vocational rehabilitation counselor. In short, you need a person who has expertise in areas where you need help. Experts are expensive, so make sure you really need one before you hire his services.

Working Cooperatively Is Best

If you and your spouse work cooperatively, you can agree on the experts to use. If you can select one in each area where you need outside expertise and can agree to accept the report of that expert, you can save a ton of money. First of all, you pay only one person rather than two. Second, you will get a neutral opinion — one not favoring either side — on which to base your settlement. Third, you don't get the court involved, thereby avoiding a possible third opinion.

Divorce lawyers often use the same experts over and over because they are recognized in their field and can be trusted as independent neutrals in cooperative divorce situations. These neutrals can be of immense help to you in valuing your assets.

If you decide to work cooperatively, make sure you hire an expert that is not known to either party. The last thing you want is your spouse's best buddy from college performing the evaluation.

Valuing a Professional Practice

Let's assume you and your spouse agree to work with one expert — often called an independent neutral — to come up with a value for your spouse's dental practice. You tell your lawyers you want to hire an expert with knowledge of dental practices, and each lawyer produces the names of two or three experts. You may ask for the experts' credentials, so you have some basis on which to choose.

You and your spouse pick the expert. You tell the expert what you want, and you provide the expert with the information she asks for. The expert gives you her best opinion, and you plug it into the balance sheet you're preparing. This may sound too good to be true, but it really does happen.

Dueling Experts

Contrast this with the litigation approach to using experts: You tell the expert you “know” the practice is worth a bazillion dollars, your spouse cooks the books, and your spouse has intentionally cut back on working over the last year to reduce the practice's value. You give the expert a bottom line from which to work. “The practice must be worth at least $500,000,” you say. Since you're the one paying the expert, is it any surprise that the expert comes up with a value of $550,000?

Well, your spouse hires an expert as well. Your spouse tells the expert the economy has slowed and demand for his specialty, orthodontics, is down because it's elective. The practice really is worth only the value of the used equipment, your spouse says, and the business can't be worth more than $50,000. It may even have a negative value. Since your spouse pays the expert, is it any wonder his expert develops a value of $34,000 for the practice?

What numbers are ringing in your mental cash register at this point? Fees for the experts, fees for the lawyers, fees for the court reporter. Valuation is very expensive, so it's important to evaluate what you are spending for the service compared to what the practice is actually worth.

At this point, you have some options. Your lawyer can take the deposition of your spouse's expert to see if there are any weaknesses in the expert's analysis. Your lawyer may well want your expert to be present at the deposition to help ask the right questions. This, by the way, is a legitimate use of a deposition. You and your lawyer want to know what the other side's expert will say at trial and whether the expert's opinion can be challenged.

Your side and your spouse's side may decide to hire a third expert, chosen by the first two experts. You may even take the issue to the court. The judge may decide a third opinion is needed from an independent neutral.

A Contested Court Hearing

At some point you bring competing experts and their reports to court for a contested hearing on the value of your spouse's dental practice. It's fair to assume the judge knows nothing about dental practices, beyond what's involved in getting her teeth cleaned on a fairly regular basis. On top of that, neither expert is a scintillating speaker, and your lawyer doesn't do much to make your expert interesting, so the judge pretty much snoozes through the daylong argument.

When the dust settles, the judge determines a value somewhere between $34,000 and $550,000. As long as the judge can come up with a reasonable explanation for the value, it will pass muster with the appellate courts. But chances are, the value will not match your expectations — or your spouse's.

After all that, here's what you end up with: expert reports costing anywhere from $5,000 to $15,000 each, a day in court for two experts and two lawyers costing anywhere from $3,000 to $15,000 each, and a stress level measuring off the charts. If you use an independent neutral from the beginning you can get the information you need for a lot less time, money, and stress. Most important, you'll end up with a real number that can contribute to a workable settlement.

Vocational Rehabilitation Counselor

Suppose your spouse has been unemployed or working only a few hours each week since your first child was born. It's clear from family expenses he will need to work full-time to generate income to support two households. Or, while you can afford to support your spouse and children now, you feel at some point he should become financially independent of you.

What if your spouse has a college degree in some esoteric field like art history and has never used this education for employment. What are his skills and interests? If neither of you can answer these questions, you may want to hire a vocational rehabilitation counselor.

You and your spouse can choose to use a vocational counselor as an independent neutral and put your energies into implementing the recommendations. Of course, you also can each hire a vocational counselor and fight about what career your spouse should pursue and how long it should take him to become self-supporting.

These experts usually work in the unemployment field, but some have expanded their practice to divorce. They usually administer a battery of tests to learn interests and skills, and they apply what they learn to what they know about the current job market. They use their analysis to make recommendations, which often include getting training or additional education. This process is sometimes called a vocational assessment.

Financial Evaluators

If you need to get a handle on your cash flow, you may want to use a certified public accountant (CPA) or other financial expert. A CPA can show how tax implications of certain actions can cost or save you money. If you and your spouse can work together in this area, you really can do yourselves a favor. So much money is spent arguing over net income, the tax consequences of paying spousal maintenance, the proper 401(k) deduction, and so on, that there's not much left over to actually live on. If the same money and energy can go into putting together a workable plan, everyone loses less.

Real Estate Professionals

Realtors can give you a good idea of what your real estate is worth, and so can real estate appraisers. While a realtor will give you a market analysis for free, an appraiser can cost hundreds or even thousands of dollars depending on your location and the size of your property. Most appraisers' values tend to be on the conservative side because appraisers usually start out with a lending institution, which generally wants to conserve its risk obligation. Realtors, on the other hand, may give your property a higher value, hoping you'll choose to work with them in selling your house. Realtors can also give you a bottom-line cash-to-seller analysis. This will tell you what you could realistically expect to receive if you sold your property immediately. This information may help you decide whether your property should be sold, but isn't always helpful in determining its value.

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  3. The Discovery Process
  4. Using Experts
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