Another Reason for Trial

Posted on April 4, 2011 by Nancy Van Tine

Hi there,

As you know, if you read this blog, I had promised a set of posts on what constitutes good reasons to opt for the very expensive route of having your divorce resolved by a judge after a trial, rather than controlling the outcome by settlement. (I happen to be a control freak who loves trying cases so I have a slightly schizophrenic view of this.)

A lot of trials happen because of valuation issues.  When one or the other of you has an ownership interest in a closely held company, a significant professional practice, or in major investment real estate, those items have to be valued before you and your soon to be ex can reach agreement on the division of assets, and sometimes before the support can be finally set.  This is an expensive process to start, as valuation experts do not come cheap.  The cost can run in the tens of thousands of dollars, particularly when the business is complex. 

Generally speaking I do not often agree on utilizing a joint expert, I find that if one side disagrees after the joint expert has given her opinion of value,  you have a guaranteed  trial. If both of you have valuation experts and if the experts are able to talk and hear each other out, often the differences in value can be compromised. But if the difference in values is huge, and that happens fairly often, then the amount of money at stake will generally drive the matter to trial.

In the end, the choice of whether or not to go to trial over valuation differences is an economic decision, the cost of trial and the uncertainty of outcome balanced against the differential between the values.

Best,

Nancy

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Step 4: Discovery; which is just that

Posted on April 8, 2009 by Nancy Van Tine

Hi there,

Discovery is the point in the process where the attorneys, using various legal tools, are able to quantify just what is going on financially, as well as with other concerns, such as custody or parenting issues.

The first financial discovery tools are the Rule 410 production and the financial statement, both of which are described in a prior post. Once those have been exchanged, the attorneys usually move on to Requests for Production of Documents (RPD) which are expansions on the Rule 410 production. If yours is a case where there are business valuation issues or a need for a forensic accountant (more on those in later posts) then those experts will chime in here with a request for the documents they will need.

At the same time as the RPD is sent out, the attorneys often will exchange Interrogatories, which are a limited series of questions to be answered under oath. Generally the lawyers also ask what are called Expert Interrogatories, where we request information from the experts and their reports so that both sides know what all of the valuations are. These experts can range from real estate appraisers, business valuators and forensic accountants, all the way to doctors and psychologists etc. if there is a custody issue or a medical issue involved.

Once the documents have been exchanged and the Interrogatories answered, (the rules provide time frames for these - which generally are expanded) the next steps are depositions, which are sessions in which you and your spouse, separately, are brought into the opposing attorney’s office to answer questions under oath. In addition to each spouse, depositions of other folks occur as well. Depositions are so complex I will do a separate post on them later.

The rules also allow for requests for medical examinations, examinations of real estate and art antiques, etc. as well as a nifty document known as Requests for Admissions. This permits one side to really pin down the other by requiring them to admit to or deny facts. If they deny a fact that you later prove, they have to pay the cost of the proving. This is an effective procedure that is used a lot in civil practice but not frequently enough in divorce cases.

Discovery can be lengthy and extremely expensive but also is a very necessary tool in many cases.

Take care,
Nancy

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