Weaponizing Forensic Accountants: When Fee Requests Become A Litigation Tactic

Forensic accountants play an important role in family law matters. When properly used, they can help uncover hidden income, trace complex assets, and bring clarity to financial disputes that would otherwise overwhelm the court. However, in recent years, forensic accountants have increasingly been used as strategic pressure points rather than neutral truth-finders, particularly in spousal support and property disputes.

Understanding when it is appropriate to retain a forensic accountant, and when it is excessive, can make or break a case, especially when one party seeks to shift tens of thousands of dollars in expert fees to the other.

What Is a Forensic Accountant in Family Law?

A forensic accountant is a financial expert retained to analyze, investigate, and, when appropriate, testify regarding financial issues such as income, expenses, asset characterization, business valuation, or alleged financial misconduct. In family law, forensic accountants are commonly involved in cases with:

• Closely held businesses;
• Self-employed spouses;
• Complex compensation structures;
• Allegations of hidden income or assets; and/or
• Tracing of separate vs. community property.

In theory, their role is to assist the court in reaching an equitable result. In practice, however, their involvement often raises an important threshold question: Is this expert actually necessary?

When Forensic Accountants Are Truly Necessary:

Courts are far more receptive to awarding fees for a forensic accountant or appointing one when there is a legitimate level of complexity that cannot be resolved through ordinary discovery.

Some examples include:

• A business owner who commingles personal and business expenses;
• Multiple business entities with inconsistent reporting;
• Cash-based income streams;
• Foreign or offshore accounts; and/or
• Significant discrepancies between tax returns and the lifestyle of a party.

In these cases, a forensic accountant can provide clarity that neither party nor the court could reasonably obtain on their own.

When Forensic Accountants Become a Litigation Weapon:

Problems arise when a forensic accountant is retained not because the case requires one, but because a party wants leverage.

Common red flags include:

• Retaining a forensic accountant before basic discovery is complete.
• Seeking broad "fishing expedition" reviews with no identified issue.
• Using the expert to inflate litigation costs.
• Requesting the opposing party pay the expert fees without justification.

In these situations, the expert's role shifts from neutral analysis to financial intimidation, particularly effective when one party has greater resources.

Courts are increasingly aware of this tactic and less willing to approve expert fees disproportionate to the issues in dispute.

Fee Requests: What Courts Actually Look At

Requests for forensic accountant fees are often bundled with attorney fee requests, but they are not automatically granted. Courts typically evaluate:

1. Necessity: Was a forensic accountant reasonably required, or could the issue have been addressed through standard discovery?
2. Proportionality: Are the fees reasonable relative to the amount in dispute?
3. Timing: Was the expert retained prematurely?
4. Conduct of the Parties: Did one party's lack of cooperation necessitate expert involvement, or did the requesting party escalate unnecessarily?

Strategic Pushback: How to Challenge Improper Expert Use

Opposing an unjustified forensic accountant request does not mean opposing transparency.

Instead, an objection to a request for forensic accountant fees can include:

• Demonstrating that financial disclosures are complete.
• Highlighting the lack of complexity in a case.
• Showing the expert's work duplicates what has already been produced through discovery or disclosures.
• Emphasizing the financial burden and inequity of the request.

Courts are particularly persuaded when the opposition focuses on efficiency, fairness, and judicial economy, rather than appearing defensive.

The Takeaway: Experts Should Clarify, Not Complicate

Forensic accountants can be invaluable, but only when used appropriately. When retained without necessity, they risk distorting the litigation process, increasing costs, and diverting focus from the real issues before the court.

Judges expect family law cases to be litigated proportionally and in good faith. Parties who weaponize experts may ultimately undermine their own credibility and weaken their fee requests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.