Court appointed neutral experts are regularly used in divorce actions. The agreement and use of only one expert for each area needing an expert can save litigants thousands or even tens of thousands of dollars and then some. Some situations do require each party to retain his/her own expert, but that is not the focus of this article. The focus is the court appointed neutral expert. The expert can be appointed in such areas as: real estate appraisal(s); earning capacity evaluation; custody determinations as an aid to the court; business appraisals, et. al.
I was at a recent meeting of a Matrimonial Bar Association and this was in part the topic: the role of the expert. One of the questions presented was what if no claim for separate property has been made by either side, but the expert finds it? Well, one judge stated that the expert better pick up the phone and inform him or he will never use that expert again. This is problematic. How so? Nothing can be brought to he attention of the judge until it is in evidence or both parties consent. The only thing that can be reported without stipulation or being put into evidence is child abuse.
So, if an expert does inform the judge without consent of all parties prior to the trial, the expert can be disqualified and sued as separate property claims are the legal burden of the party asserting it, and if no one asserted it… And the judge would also be subject to recusal for having been exposed to evidence prior to being in evidence and without consent. It would then be humanly impossible for the judge to remain neutral and objective and not potentially unconsciously seek to compensate the litigant who failed his or her burden based on the expert’s improper say so.
The order appointing the expert should be very clear as to what the expert is being appointed to evaluate/appraise. If the parties and their attorneys want the expert to find unmade claims of either party, then that should be included in the stipulation for the court to appoint the expert. The parties are also free to consent to the expert contacting the judge and informing him/her of the findings, they can. But all of this must be spelled out in the beginning, and consented to in writing by all the parties and their attorneys.
It is the duty of your lawyer to properly interview you to find out if there may be potentially separate property in your case to assert a claim to prior to ever going to court.