Collaborative Divorce
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Thursday, April 19, 2018
By Doug Berry
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Collaborative Divorce:  Eliminating the cost of the “battle of the experts”

The division of marital property in a divorce (“Equitable Distribution”) often involves a property interest that requires a professional appraisal (real estate, a business interest, art work, antiques, etc.). How this process plays out in a collaborative divorce setting can be quite different than in a more traditional adversarial court divorce.  In an adversarial divorce where the parties often have trouble agreeing on the time of day, one party will have an experienced credentialed certified professional appraise such a property interest. In the blinding fog of marital distrust, the other assumes that the first spouse’s attorney has selected the appraiser to get a high or low value, so a second opinion appraisal is often obtained, with the predictable result of two substantially different values.   If there is a need to ask the expert questions about how he/she came up with the appraised value, the Court Rules of Civil Procedure provide for this to be done through a deposition where the appraiser is subpoenaed to appear in a lawyer’s office to answer the opposing attorney’s questions in the presence of a court reporter with the other spouse and his/her attorney present to also question the expert. The court reporter will then type out every word spoken on the deposition record for that day and provide an original and copies of the deposition transcript.  Then both experts would be subpoenaed to testify in Court often a year or more after the appraisal was done.

These experts would charge the procuring party for the appraisal and additionally for their time involved in preparing for, and testifying at, both the deposition and the court trial.  Although either spouse has the option of reaching a compromise agreement with the other as to the contested question of value, the traditional adversarial process often has the effect of hardening each side’s position on contested issues.  

The collaborative divorce process is premised on the commitment by both parties to directly engage in open, direct and civil discussions and negotiations regarding any differences in value and if an expert is needed, the parties agree to select one expert appraiser.   Free of the straight jacket of the Court Rules of Civil Procedure, the parties have committed in the Collaborative Agreement to openly discuss his/her concerns and questions concerning value with each other and the expert. And just as importantly, these discussions are guided by attorneys committed to the collaborative process.   The collaborative divorce process, instead of aggravating the hostility and hurt often present in a divorce, gives the Parties the necessary framework and guidance to get beyond the raw emotions of the moment, and focus on the more objective question of the value of a particular asset.

 

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