What do Forensic Accountants do during matrimonial litigation?

As previously explained forensic accounting in the business world refers to the application of accounting, business principles and techniques to investigate and analyse financial data with the principal goal of providing impartial and reliable evidence to Courts. This expertise becomes particularly crucial in matrimonial litigation.

During matrimonial litigation both parties need to provide financial information to the Court with a view to the couple disclosing their respective asset and income positions. When the financial matters are complex, particularly those involving business entities, the court will often seek the expertise of a forensic accountant to value a company or trust or some other financial interest.

In addition, forensic accountants are routinely asked by the Courts in matrimonial litigation to trace and locate assets with a view to including these undisclosed assets in the couples matrimonial pool.

Forensic Accountants preparing a valuation for use in court or a mediation

A forensic accountant can be appointed either as a single expert or joint expert. Whether appointed as a single or joint expert, the primary role of the forensic accountant is to assist the Court in valuing a company or trust or some other financial interest.

Ultimately, if necessary, the forensic accountant’s valuation may be relied on by a court as impartial and reliable evidence as to the value of the particular interest to be included in the couples’ marital pool of assets.

The normal steps undertaken by a forensic accountant in conducting a valuation during the course of matrimonial litigation are as follows:

• A lawyer will ring the forensic accountant to discuss the nature and scope of the proposed engagement. If the expectation is that the forensic accountant will be engaged as a joint expert the discussion will be had with both the husbands and wife’s respective lawyers. Contrarily, if the forensic accountant is to be engaged as a single expert the forensic accountants’ instructions will be provided by the relevant lawyer;
• An application is made to the Court by one of the lawyers to appoint the forensic accountant. Following the application, the Court issues an order appointing the forensic accountant as a single or joint expert. Normally, the orders of the Court provide instructions as to the nature and scope of the proposed forensic accountant’s engagement;
• The lawyer(s) sends instructions to the forensic accountant. Most times, but not always, the instructions include both the Court orders and a brief of evidence (i.e. financial statements, bank statements, etc);
• On receipt of the Court orders and brief of evidence, best practice is for the forensic accountant to conduct a preliminary review of the brief evidence and undertake precursory analysis. The principal purpose of this preliminary analysis is twofold:
  • Identify what further information is required to finalise the valuation. The forensic accountant then requests any further information through their instructing lawyer(s); and
  • Best practice is for the forensic accountant to confirm with their instructing lawyer(s) that the instructions provided address all significant issues. An illustration of an event where the instructions may not have addressed all the significant valuation issues is where the forensic accountant identifies taxation issues, which may impact on the division of the marital pool and the forensic accountant existing instructions have not specifically requested the forensic accountant comment on any taxation issues.
• If necessary, the forensic accountant may need to attend the business premises and / or hold discussions with the business principles;
• If necessary, the forensic accountant may need to discuss aspects of the valuation with the business’ external accountants;
• In more complex valuation engagements, the forensic accountant may need to conduct industry analysis;
• The forensic accountant then finalises their expert written report; and
• If the litigation proceeds further (i.e. the litigation is not settled before the respective parties go to Court), the forensic account may be required to attend a mediation or Court to provide further evidence regarding the valuation.

Shadow expert and adversarial forensic accountant

Whether appointed as a single or joint expert by the Court the forensic accountant’s valuation will be disclosed as part of the litigation to all the lawyers acting in the litigation. In these circumstances, the forensic accountant’s primary obligation is to provide impartial and reliable evidence to the Court.

Occasionally, one of the parties to the litigation will engage their own forensic accountant to conduct a review of the valuation prepared by the court appointed forensic accountant. This type of forensic accountant is called a shadow or adversarial forensic accountant. The shadow or adversarial forensic accountant’s review does not strictly have to be disclosed to the other lawyers or even the Court.

Notwithstanding, on occasions the shadow or adversarial forensic accountants review may be used in some capacity in the matrimonial litigation and only at that time will the shadow or adversarial forensic accountant’s report be disclosed to the Court.

A common circumstance where one of the parties may engage a shadow or adversarial expert is where there is a significant assets pool, and one of the parties to the litigation, normally the husband, has a disproportionate understanding of one of the couple’s finances and may not have provided complete and accurate disclosure of financial information to the Court.

If you would like to find out more about Vincents Forensic Accounting services, reach out to me here.

Disclaimer: The content of this article is general in nature and is presented for informative purposes. It is not intended to constitute tax or financial advice, whether general or personal nor is it intended to imply any recommendation or opinion about a financial product. It does not take into consideration your personal situation and may not be relevant to circumstances. Before taking any action, consider your own particular circumstances and seek professional advice. This content is protected by copyright laws and various other intellectual property laws. It is not to be modified, reproduced or republished without prior written consent.