Judges are Deciders, not Investigators, in Divorce Litigation

A recent post on BVLaw (culled from the materials for the BVR Summit on Business Valuation in Divorce, going on now in Chicago) reminds us that pre-trial discovery and preparation are essential tasks in divorce litigation which must be conducted by the parties, with the assistances of their lawyers and experts, not the court:

Speaking at this morning’s BVR Divorce Summit, Judge Thomas Zampino gave some excellent advice for matrimonial lawyers.  ”I’m not going to go out and find all the assets that are hidden under the bed.   And, I’m not going to determine what they’re worth.   You don’t want me doing that.  But, my job is to narrow the field of answers, and then divide the assets as best I can.”

Judge Zampino’s comments are his opinion, of course, but many judges feel the same way. The court has no power, authority or resources to perform the investigation and valuation functions that are necessary to an equitable result. Lawyers, experts and their clients must do this work before it is time to settle or litigate the case. Judge Zampino also made the interesting observation that he can feel more confident about making a decision on how to divide property if there is not a wide gap between the opposing experts’ opinions. In some cases, we allow the experts to confer with each other in advance to identify the similarities and differences between their opinions. This often leads to a stipulation, or agreement, on the value of a business. Even if it does not, the experts may be better prepared to show the judge why their opinions differ and convince the judge to adopt the “right” answer.