Battle of the Experts: Evidentiary Issues in Divorce Cases

Divorce cases cover several family law issues, such as property division, spousal support, and often child custody and support matters, if applicable. These issues can involve sophisticated questions of fact that require substantial evidentiary support.

The evidence related to divorce issues often comes in the form of documentary evidence or testimony from expert witnesses. In divorce cases, each party may need to hire their own experts. When a divorce involves resolving matters of child custody, even the court may use its own experts. Expert witnesses can testify regarding their opinions about crucial issues, whereas nonexpert witness opinions are often considered irrelevant to the issues at hand.

In many divorce cases, the parties might need a forensic accountant to testify regarding questions of property division and spousal support. When the custody of minor children are involved, the parties might hire a custody and visitation evaluator. Additionally, vocational evaluators are often utilized to testify about a party’s ability to secure post-divorce employment in spousal support matters.

Expert Qualifications

If the parties need to rely on expert testimony to support their arguments, one of the first evidentiary issues concerns the qualifications of their expert witness. At trial, a party must lay the foundation regarding the expert’s background and experience. Typically, the expert can testify as to their own qualifications, and may not need support documentary evidence to lay a foundation about their qualifications.

The following things can be used to lay the foundation for an expert witness’ qualifications:

  • Current position or title
  • Educational background, including degrees awarded
  • Specific areas of study
  • Years of experience in their area of study
  • Tenure
  • Publications
  • Clinical experience
  • Honors and awards

Experts Appointed by the Court

In many divorce cases, the court can appoint its own expert to form an opinion and recommendation regarding a certain issue—particularly regarding child custody. Under California Evidence Code § 730, if “expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”

Court-appointed experts as casually known as “730 experts” in the practice of family law. Because the court is legally obligated to determine a custody arrangement that serves a child’s best interests, it can enlist the expertise of custody evaluators to help fulfill this obligation.

733 Experts

The parties are not restricted to the findings and conclusions of a 730. They can retain their own experts to challenge the findings of the court’s 730 expert. California Evidence Code § 733 provides that “[n]othing contained in this article shall be deemed or construed to prevent any party to any action from producing other expert evidence on the same fact or matter mentioned in Section 730; but, where other expert witnesses are called by a party to the action, their fees shall be paid by the party calling them and only ordinary witness fees shall be taxed as costs in the action.”

While expert witnesses can strengthen a party’s arguments, they are often very expensive. For instance, 733 experts are typically only affordable for individuals who have significant financial resources. Custody evaluators may cost $300 for their time. This can become prohibitively expensive as they might charge for their time researching and analyzing a case, not to mention testifying in court.

Consult The Neshanian Law Firm, Inc. for Legal Representation

AtThe Neshanian Law Firm, Inc., our legal team is experienced with litigating a number of family law issues, including divorces. We have the skill and knowledge to help you promote and protect your legal rights and interests during your divorce. We can also help you determine whether the use of expert witnesses is appropriate for your case.

Call us at (949) 577-7935 or contact our office online to arrange for a case evaluation.