Expert reports are a common feature of divorce proceedings, even where negotiations are amicable, because of the importance of ensuring accurate valuations of assets.
For example, the failure to properly assess pension assets or earning capacity can have a long-term impact on one person’s financial circumstances. Where there is hostility, it may be necessary to investigate hidden or dissipated assets.
The financial aspects of divorce, or dissolution of a civil partnership, can sometimes provide more questions than answers especially where there are business assets or a broad portfolio of investments. This is where getting an independent expert on board can provide much needed clarity and resolution.
‘It is common for disagreement to crop up over assets, such as the value of the pension or a business, when it comes to settling finances on divorce,’ says Akash Soni, an experienced family law solicitor and accredited family mediator at Breakthrough Solicitors.
‘It is a good idea to try and identify areas of dispute as early as possible in the process, so that we can look for the right expert to help before it gets complicated. This can save costs and also delay, whether or not there are court proceedings.’
How would I know if an expert is needed?
Initially, you may feel that your matrimonial finances are straightforward, and the involvement of an expert is not necessary. However, it might transpire months later that you and your former spouse do not agree on what the family home is actually worth, or you might think your spouse is now undervaluing their business on purpose.
On the flip side of the coin, you may already suspect that an expert will be needed to provide an accurate valuation of a complex asset, such as a pension pot. Of course, it could be that you just do not know at this stage, and need guidance.
Where there are many assets involved, in particular involving investments, businesses and trusts, it is very likely that you will need experts to provide valuations, because neither you nor your ex will know what these assets are worth.
In all instances, it is advisable to speak with a family law specialist at the outset. Those discussions will identify areas of potential disagreement or uncertainty and, at the same time, options as to the type of experts that might be needed.
What sort of experts might be needed?
Experts within divorce proceedings are independent professionals with expertise in their field. The following are examples of the experts commonly instructed:
- an estate agent or chartered surveyor will be used to provide valuations of the family home and other properties;
- an accountant or business valuer would be used to provide a valuation of any business shares or assets;
- a forensic accountant is a specialist investigator who would explore suspicions of hidden assets, or they may be asked to analyse complex income streams or a pattern of expenditure;
- an actuary or PODE (pensions on divorce expert) will be used to provide reports on pension values and benefits;
a cryptocurrency experts may be needed to provide a valuation of digital assets; - an employment consultant can be called upon to provide a report on a party’s earning capacity and prospects of employment; or
- medical experts may be asked to report on one party’s health, if they say it will prevent them from working.
How are experts appointed and paid for?
Here are the two main scenarios in which this could happen:
Outside of court proceedings
If you are trying to negotiate a settlement before a court application, you can both agree to instruct an expert, such as a chartered surveyor, to value property.
Whilst the surveyor will not, at that point, be an ‘expert for the court’ they are likely to proceed in the same way that they would if they were providing a report to the court.
This also works to your advantage if you do end up in court proceedings, as you could ask the court to simply rely on your existing expert report, rather than appointing someone new, and at further cost.
Within court proceedings
Within court proceedings, the court will appoint one independent advisor, known as a ‘single joint expert’.
However, the judge does not provide you with options. It is for you and your family lawyers to make enquiries with the experts you want the court to appoint, including how much they will charge and their timescales to provide a report.
If you can agree on your choice of an expert, the process is straightforward and you simply ask the judge to order that your agreed expert be formally appointed.
If the choice of expert cannot be agreed, and you each put forward a different preferred expert, the judge can take a final decision. It is important to remember that experts do come at a cost, which you and your ex have to meet and these costs are usually shared equally.
Once a single joint expert is appointed, it will be for one side to prepare a formal letter of instruction, which is agreed by the other side and then sent to the expert.
This letter sets out their duties to the court, as well as the specific questions they are being asked to answer. There has to be transparency, with both sides copied into communications, which ensures the expert remains unbiased.
Do I really need an expert?
For issues such as how much the family home is worth, you might not need an expert report if you have researched the housing market and can agree with your spouse.
For more complex issues, such as the value of crypto-assets or a pension, you can also agree what you think they are worth.
However, it is unlikely to be accurate if you do not have any expertise in that type of asset and this could really disadvantage you when looking at a settlement, both financially and in terms of delay. In such a situation, it is advisable to instruct an independent expert.
Having an independent expert report on a dispute will level the playing field, helps to remove any distrust and provides a final answer.
What about a disagreement over our children?
Whilst child arrangements are agreed separately to the financial arrangements in divorce proceedings, issues can and will crop up during the realignment of a family unit.
If a situation arises where it is being said that your child does not want to spend time with you, or perhaps they are telling you they do not want to spend time with their other parent, the family court can approve the involvement of a child expert.
In this example, the court would explore whether a child psychiatrist or psychologist is required.
Generally, CAFCASS (Children and Family Court Advisory and Support Service) will be involved at the start of every child arrangements application. They will speak to both parents and, if necessary, to the children, and report their recommendations to the court.
How we can help
If you are getting divorced and there are unvalued assets involved, or you are not sure whether expert reports will be needed in your circumstances, our specialist family law solicitors can explain how it all works and help to devise an action plan with you.
For further information, please contact our the family law team on 01494 776696 or email [email protected].
Breakthrough Solicitors has offices in Harrow, Milton Keynes & London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
