Role of Expert Witnesses in Divorce Proceedings

Expert Witnesses

Witnesses can be fact witnesses who testify to facts, or expert witnesses who can testify to facts as well as give their opinions. Expert witnesses are engaged to provide testimony regarding their knowledge in a particular subject. Such knowledge is beyond that of the average person by virtue of the expert's education, profession or experience so that their opinion will assist the judge or jury in making a decision. In divorce proceedings, many times physicians, psychologists, social workers, pension analysts and appraisers are engaged as experts.

Expert witness testimony is essential to legal proceedings that involve technical, medical, professional or scientific matters. The primary function of an expert witness is to express his or her independent expert opinion based on the information that is provided.

Expert witness must maintain high ethical standards in compliance with the Rules of Civil Procedure, with the overriding duty being to the court or tribunal. An expert witness is not an advocate for a party. An expert witness must truthfully, objectively and fully express his or her expert opinion, without regard to any views or influence which the person retaining or employing the expert may have or seek to exercise.

The trend of involving an expert witness in divorce cases has increased over the last decade. Experts are increasingly required in complex matrimonial cases for issues involving annulment of marriage, property valuation and distribution, spousal support, child custody and especially in complex issues such as paternity disputes, earning capacity, etc.

For cases involving questions of cruelty or abuse, a medical or psychological expert can play a significant role by testifying as to the physical or psychological effects of a party's conduct and the degree of cruelty suffered by a spouse. Similarly, expert opinions are sometimes required in determining fitness for custody of children and in determining the worth of marital property. Property and financial matters are particularly dealt with by experts like certified public accountants and property appraisers. An economist may comment on the future earning capacity and employability of the spouses to assist the court in determining spousal support. Tax experts might provide advice regarding tax consequences when determining the distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings. Frequently, when paternity is in question, an expert witness will testify as to the results of DNA tests.