When meeting with a divorce attorney for an initial consultation, it is crucial to understand how important it is for you and your attorney to begin formulating a trial strategy then and there. Ascertaining the important issues to focus on through discovery is the key to successfully handling financial issues in matrimonial proceedings.
By the time you are on the trial calendar, it may be catastrophic to your case to first learn that you do not have the necessary information and documents. Discovery should be targeted and not be general blunderbuss requests.
One of the most important issues in a case to focus on at the outset – especially if you are the non-monied spouse – is what is your spouse’s source(s) of income? Are they strictly a W-2 employee? Are they a teacher? A partner at a law firm? Do they receive a 1099? K-1? Are they the sole owner of a business? If so, what kind of business? Do they own a contracting company? A real estate company?
All of this is essential and must be discussed with your attorney before ever stepping foot into a court room or sitting down at the negotiation table. Why: Because you may be in need of an expert (such as a forensic accountant) to ascertain the value of your spouse’s interest in a business.
Further, an expert may have to perform a lifestyle analysis because of cash income or personal write-offs through the business. This analysis may be especially critical especially wherein his/her business has a cash component. Did your spouse write off personal meals, clothing, handbags? What about family vacations, expenses for your backyard pool? All of this information is critical to determine his/her actual income and not just what is set forth in his/her tax returns.
Pre-trial information is critical to provide experts so that the issues and facts you consider important are part of their valuations and income analysis and not left until cross-examination. Most experts, like most people are reluctant to change their opinions once they are written and circulated. Accordingly, the best way to obtain a positive result in a case is to obtain a favorable expert report while leaving your adversary with the near impossible task of convincing that expert to change their mind once they are on the witnesses stand.
Kieth Rieger has been practicing matrimonial law since 1981. He is a Fellow in the American Academy of Matrimonial Lawyers, Executive Committee of the New York State Bar Association’s Family Law Section and Past Dean of the Nassau Academy of Law.
Joshua L. Rieger is a partner at Rieger, LLP – a firm specializing exclusively in matrimonial law – where he has been practicing since 2012.