Who Is Responsible To Pay For A Court Ordered Expert In A Divorce Case?

Who Is Responsible To Pay For A Court Ordered Expert In A Divorce Case?

Under New Jersey divorce law, our lawyers understand that it is quite common for a judge of a New Jersey Family Court to order that experts become involved in a divorce case.  These experts can range from child custody professionals to forensic accountants (which are often used in divorce cases in which one or both spouses own their own business).  Our attorneys understand that a judge must consider the financial situations of both spouses in order to determine whether the fees should be equally split between the parties, that one spouse be solely responsible or somewhere in between.  This is one of many reasons that the lawyers at our law firm focus closely when preparing your financial disclosure (i.e., Case Information Statement) so that we are sure that our client is responsible to only pay a fair, reasonable and just amount towards the expert fees.  Recently a New Jersey divorce trial resulted in the husband being court ordered to pay 60% of the fees.  Below is this lawyer’s analysis of how a judge analyzes the finances in a New Jersey divorce in order to make this determination. 

In Santos v. Linhares, the parties struggled to settle the financial issues of their divorce, specifically the payment of counsel fees and the costs for the parties’ joint accounting experts and mediator.  After several days of contentious divorce proceedings, the parties entered into a final judgment of divorce which solved the majority of the financial issues between the parties.  However, the judgment did not resolve the issue of counsel fees owed to the Wife, if any, by the Husband.

Although the final judgment of divorce did not specifically designate the counsel fees to be paid by either party, the parties agreed in the judgment that the court would resolve the remaining disputes by “considering the certifications of counsel and the parties’ briefs.”  On September 28th, 2017, the judge issued an order granting the Wife $72,514.09, and requiring the Husband to additionally pay the Wife 60% of the experts’ and mediator’s fees.  The Husband, feeling that the amount was unreasonable, appealed the judge’s order.  On appeal, the Appellate Division rejected the Husband’s arguments and affirmed the trial judge’s order.

In determining the amount of counsel fees owed to the Wife, as well as the payment of the expert and mediator fees, the judge considered the financial circumstances of the parties, as well as their conduct throughout the trial.  During the litigation leading to the final judgment of divorce, the court determined that the Husband’s testimony was often not credible and that he frequently misrepresented his income.  The court stated that the Husband’s business always had “significantly more value than he admitted.”  Further, the Husband’s conduct during the trial proceedings was unreasonable and frequently caused the Wife to incur unnecessary fees. 

In making her decision, the judge also looked to the parties’ former counsel and noted that the Wife’s requests for attorney’s fees had previously been denied.  Further, in the midst of the divorce proceedings, the Wife had to file a motion to enforce the Husband’s court-ordered support obligations, therefore incurring further expenses due to the Husband’s failure to comply with court orders.  The judge determined that looking at the Husband’s behavior as a whole led her to believe that his actions were purposefully evasive and unreasonable and that he generally acted in bad faith throughout the litigation process.

Despite this, the Husband argued that the judge had abused her discretion in awarding the Wife attorney’s fees as well as requiring the Husband to pay 60% of the expert and mediation fees because the order was “manifestly unreasonable” and the court’s factual findings were “contrary to the evidence.”

On appeal, the Appellate Division rejected the Husband’s argument that the trial judge abused her discretion, and affirmed the order.  The court stated that reversal of a trial court order is warranted only when the findings are “manifestly unsupported” and “inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.”  The Appellate Division found that no such mistake or injustice had occurred here.  In determining the award of counsel fees and the division of expert and mediator fees, bad faith relates to the conduct of the party during litigation.  The award of fees against a “bad faith” litigant serves the purpose of protecting the innocent party from expending unnecessary costs due to the behavior of the opposing party. 

Here, the judge determined that the Husband consistently misrepresented his income in the hopes of avoiding a higher payment, and ignored court orders to pay child support and other costs.  This forced the Wife to pay the costs to file an enforcement motion, and even after this, the Husband remained $11,000 in arrears at the time of the trial.  The Husband also failed to comply with a case management order, and he refused to submit documents to assist in the settlement proceedings.  The Husband’s failure to cooperate throughout the length of the trial resulted in unnecessary discovery and litigation to establish facts that should have been readily determined at the beginning of litigation.

The court also closely considered the parties’ personal financial situations in determining the payment of counsel fees and the division of the expert and mediator fees.  Here, the Husband had an average annual income of $180,000 and the Wife’s average annual income was $53,000.  This large gap between the incomes of the Wife and Husband was taken into account when determining which party should bear the burden of counsel fees.

Lastly, the court rejected the Husband’s argument that the trial court failed to conduct a proper analysis to determine if the Wife’s attorney’s fee was reasonable.  The trial court carefully considered the counsel’s certification, which contained a detailed record of the hours spent and the hourly rate, and determined that the time and money spent was reasonable.  The court also considered the fact that although the Wife had incurred over $124,000 in fees, she was only receiving $72,514.09.

Therefore, because of the Husband’s consistent refusal to comply with court orders, frequent misrepresentation of income, and the disparity between the Husband and Wife’s annual income, the Appellate Division held that the trial court properly determined the division of counsel fees as well as expert and mediator fees for the Wife.


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