Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

The following post was contributed by guest author Grant Webb, an accounting and accounting law writer for Bisk Education and Villanova University.

Forensic Accountants Fill a Unique Niche

Family law and divorce cases are often quite complex. Depending on the number of family members involved, the amount of assets at stake, and the specific circumstances of the case, even the most experienced attorney might need to acquire additional expertise to achieve the best results for the client. In cases where assets may have been hidden, misrepresented, under-valued or mysteriously liquidated, an experienced forensic accountant may provide the expertise necessary to uncover the facts needed so that the case can move forward in an effective manner.

With the increase in sophisticated technology over the past decade also comes the dawn of more sophisticated investigative power tools. At the same time, people who intend on hiding assets have also become stealthier. When a marriage with significant assets needs to be evaluated for net worth, the assets are often spread across many different areas. Property, businesses, savings accounts, mutual funds, municipal bonds, antiques, jewelry, and recreation items like watercrafts for example are all items that need to be documented and valued. Anticipating the divorce or other family litigation, one of the involved parties may begin to re-title items, sell off or give away valuable possessions to a close friend or relative for later retrieval, and in general hide investments. While the family or divorce attorney is building the case with a general understanding of these facts and other related details, a forensic accountant can usually retrieve highly detailed evidence to make the case stronger. Drawing connections to see the whole picture is a forensic accountant’s fortè. Working together with a family or divorce attorney, a forensic accountant presents a formidable partner on a legal team where financial wrong-doing is an important topic of the investigation.

A complex case requires the expert knowledge of professionals who can secure the best possible outcome for a client. Hiring an attorney who is accustomed to bringing in and working effectively with other expert professionals such as a forensic accountant could mean a more favorable outcome. While cost is always a concern when pursuing legal solutions to disputes, many settlements or court decisions will have long-lasting effects on family members so it is important to be as effective and thorough a possible as the case proceeds. A Certified Forensic Accountant offers a unique skill set to the legal professional and can help provide the experience necessary to help secure critical financial evidence. When choosing a family or divorce attorney to help resolve a complicated dispute, savvy clients make sure that they can keep the option open to bring in other experts, like a forensic accountant or CPA, in order to secure the best outcome possible despite stressful circumstances. There are countless justifications for hiring legal representation of this type but for clients that may not know the upside to hiring a forensic accountant or even know how to hire the right CPA, it's always a good practice to interview or even research these industry professionals to determine the best hire or fit for a client’s needs.

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While Missouri courts normally follow the “American Rule” regarding legal fees – that each party is responsible for his or her own costs – Missouri dissolution of Marriage statutes give the court the discretion to order one party to contribute to the other party’s fees. Specifically, Section 452.355.1 provides:

Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney's name.

The court is always required to consider the financial resources of each party before deciding on a request for attorney’s fees.  While the court must consider the financial resources of each party, a spouse is not required to forego a claim for attorney's fees merely because assets on hand are available to make payment.

In most cases, attorney fees are not an issue, and usually judges are reluctant to award attorney fees. However, when the issue does arise, the conduct of the parties during the litigation and how the judge perceives the parties are usually just as important as financial resources in determining the award.

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In a recent ruling by the Missouri Court of Appeals for the Southern District, a division of property and debt where the Wife received 93% of the assets and 27% of the debts, and the Husband received 7% of the assets and 73% of the debt was reversed and remanded to the trial court for further proceedings.

It is typical in a majority of cases for the trial court to divide property and debt equally. However, the Court is not required to follow a rigid formula for property division and is not required to divide the property equally. The division must be “fair and equitable” to the parties. This means that the court has a great deal of discretion when dividing property and debts, but there must be sufficient evidence to support a disproportionate division as being fair and equitable. In determining the property division, the court must consider the economic circumstances of the parties, contributions during the marriage, the value of non-marital property, conduct during the marriage, the custodial arrangement for the children, and other factors.

In the recent case, the Court looked primarily at the conduct during the marriage, and the trial court had found that physical abuse and verbal threats had occurred which supported the disproportionate division. However, there must be evidence to show the additional financial, emotional, or other burdens placed on the aggrieved spouse due to the conduct. It is not appropriate to “punish” a spouse’s marital conduct by way of disproportionate property division, and conduct is the only factor that must be considered.

In this case, there was evidence of the misconduct, but no evidence as to how it caused additional burdens or stress on the other spouse or the marriage, financial or otherwise to support the grossly disproportionate division. The case was remanded to the trial court for further proceedings to make those findings.

SD29991-  Missouri Court of Appeals for the Southern District of Missouri

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In its simplest form, a deposition is the giving of oral testimony under oath before trial.  Depositions are conducted in front of a court reporter and will assist your attorney in the preparation for trial.  The use of oral depositions is a standard procedure in family law cases for discovering relevant and material facts, determining the strategy of the case, and searching the concience of the person being deposed (called the deponent).

It is very important to take the deposition seriously.  As a deponent, the attorney taking the deposition is searching for ways to discredit the deponent, obtain information, and obtain admissions.  The defending attorney is seeking to avoid harmful admissions, present the facts in the best light possible, and to protect the deponent's creditability.

You should remember that the deposition is usually the first chance the opposing attorney has a chance to see you, so you must make a good impression, and treat the deposition as if you were appearing in court.  You should do the following:

1.  Be clean and wear neat, conservative clothing

2. Be respectful

3.  Tell the truth to all questions asked

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