Divorce and Family Law

Expert Witnesses in a Divorce Case

During the course any divorce proceeding, the need for expert witnesses may arise. Concerning the financial aspects of a divorce proceeding, it may be necessary to hire the services of an accountant to cipher through financial documentation, the retention of a business valuator for the purpose of valuing a closely held enterprise, or the hiring of an actuary for the purpose of evaluating the array of retirement programs provided though employment. The hiring of financial experts relates directly to the discovery process previously described. Obviously, the gathering of financial records is necessary to perform these expert functions. Additionally, if a litigant owns interests in businesses involving third parties, serious disputes could arise relating to the disclosure of financial materials. These issues, without a doubt, can cause serious additional delays in divorce litigation not including the time necessary to perform the expert functions themselves.

On the same note, it may become necessary to retain the services of experts for the purpose of making determinations concerning non-financial issues involved in a divorce proceeding. Those issues include, custody, access to children and the mental, physical and emotional stability of either party to the divorce proceeding.

Under Illinois law, there are two (2) methods of involving outside experts in the litigation. The first method is for a party to request the appointment of a particular medical doctor or mental health care provider to perform evaluation of the opposing party. If a party’s physical or mental health makes them incapable or undesirable to maintain custody of the parties’ children or those conditions necessitate the restriction or limitation of access to the children, that expert would make the determination. The second method of involving a mental health care provider or medical doctor is to request the court independently appoint an individual for the purpose of evaluating the best interests of the children, evaluating the parties’ mental and physical conditions, and/or making recommendations to the court relating to the custody and access issues.

divorce1Those processes are time and cost consuming, but routinely utilized by the Illinois courts. If various experts are appointed in your divorce, their conclusions, fact gathering methods and recommendations are then subject to additional discovery. Consequently, the information gathering process continues throughout the divorce proceeding and again causes additional delays and expense in the conclusion of the divorce process.

Finally, if the court deems it necessary, upon its own motion, or upon request of either party, the court may appoint a guardian ad litem or child representative for the children. That individual essentially acts as attorney for the children, gathers facts on behalf of the children and takes position with the court for the children as it relates to custody and access issues.

In spite of the use of the various experts listed, and the recommendations which may be made by a guardian ad litem or child’s representative, the judge has the ultimate decision making power in every divorce proceeding. There is no individual who can make recommendations to the court with the expectation that the court will or must abide by those opinions. Your trial judge has the final say and it is not uncommon for a court to disregard and/or modify recommendations submitted by expert witnesses if the facts of your case so warrant.

Illinois, unlike many other jurisdictions, monitors the progress of divorce litigation by requiring both parties to routinely appear in court for status hearings. After you initially set your case for a court appearance, the judge will require periodic additional court appearances to determine the status of the litigation. These status hearing can be as frequent as every thirty (30) days over a divorce that could conceivably take one (1) to two (2) years to complete. Obviously, those appearances become costly and time consuming. However, because of the large volume of cases passing through the Illinois judicial system on a daily basis, the Illinois courts require the parties to appear and report the status of pending motions and petitions, the status of discovery, the status of expert evaluations, and eventually the status of the parties ability to proceed to trial if necessary.

Most often, the parties to the litigation are not required to appear in court for status hearings. If they were required, to their frustration, they would find those hearings to be time consuming, due to the large volume of cases set on the Court’s daily calendar, and relatively nonproductive. However, these hearing are required by our judicial process in order to avoid cases sitting stagnant for any lengthy period of time.

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