New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

I just finished a day of trial yesterday taken up be competing real estate experts regarding the value of the marital home.  It was certainly a reminder of the problems with the values of real estate in a rapidly changing market.

We first have to start with the basic premise of using the appropriate valuation date.  The case law is clear that a marital home is valued as of the date of the trial.

That caused some interesting issues in this case. The Complaint for Divorce in this matter was filed in September 2006.  The original appraisal of the home was done in April 2007.  While the market had already started to decline, both experts testified yesterday that their profession was resisting making adjustments for time (that is, if the comparable sales they were using were months prior, they were not adjusting for the decline in the market between the time of the sale of the comparable and the home they were appraisal), prior to early 2008.

Because this case is in a county that is hard to get trial time, the trial had been adjourned several times.  The original appraiser, who was a joint appraiser, updated his report in January 2008 and it should come as no surprise the the value had decreased.  It should also come as no surprise that the person that wanted to be bought out of the house objected and got his own appraisal.  This appraisal was in April 2008 and used comparables from the last quarter of 2007.  No adjustments for time were made.  The original appraiser updated his report for trial in September 2008.  Given what is going on with the real estate market, it is no surprise that the value has gone down again.

In fact, the appraiser believes that at this point, values are going down at a rate of 1/2% to 1% per month.  He also anticipates this to continue.

This case illustrates several areas for concern:

1) Best practices, which is court policy that dictates the time line of cases, will inevitably force appraisals to be done several months before the trial date.  In this market, is that not forcing the parties to get at least one more appraisal given the time delay between the end of discovery and the end of a trial? 

2)  In the event that there is a trial, some times it takes many months to get a decision.  Assuming you have a fresh appraisal report as of the trial date, in this market, if there is a several month delay, is the value as of the trial date a fair assessment of value for equitable distribution?

3)  Does it make sense in this market for one party to keep the house and either buy out the other spouses interest from the equity or offset the other side's share of the equity against other non-real estate assets?  With the prognostications regarding the continued decline in the market, would it not be most fair to sell the house so that the pain is shared equally and then divide the rest of the assets, in-kind?  I suppose it depends on how long the person getting the house plans to stay there.  If it is a long time, maybe it makes sense to keep the house.  If it is a short time, probably not so much. 

The equitable distribution statute requires a court to look at the income producing aspect of the assets received in equitable distribution.  While you don't see this done too often, how should a court look at an asset that is expected to continue to decrease in value for the foreseeable future. 

What this all means is that we need to think our prior thinking about what to do with the marital home in this declining economy.

 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote a terrific post entitled "Advice for Troubled TImes in the Market" on that blog. 

To read the entirety of Mark's post, click here.

 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote a terrific post of the valuation of personal property on that blog. 

To read the entirety of Mark's post, click here.

In New Jersey, and probably elsewhere, the last things that judge's really want to get involved in is the division of personal property.  In most cases, the time spent wont justify it.  Some of the ways that personal property issues are resolved are as follows:

1) the alternate selection method (i.e. each party alternates picking until there is nothing left)

2) one party makes two supposedly equal lists and the other party gets to choose the list they want.

I have also heard of cases where, for a particular item or items, the parties had an auction between themselves on the item (particularly when the cannot agree upon a value.)

The bottom line is that these issues are best resolved between the parties, acting reasonably and rationally. 

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One of the things that we were reminded of  from the McGreevey divorce is that if a party claims that an asset is exempt from equitable distribution, they have the burden of proving the exemption.  In McGreevey, the wife shared in what the husband alleged were the proceeds of the sale of his premarital condo because he failed to prove the exemption at trial.

I just recently completed a trial, representing the wife, where we had several claims of exemption because personal property, cash and stock were either gifted premaritally or during the marriage.  In addition, there were certain inheritances during the marriage. 

The law in NJ is pretty clear all property acquired during the marriage by way of gift, devise or intestate succession is exempt from equitable distribution other than interspousal gifts which are subject to equitable distribution.  Similarly, if an asset is premarital, then by definition, it is not "acquired during the marriage" and thus exempt.

The problem arises when exempt funds are commingled with non-exempt funds.  To prove exemption, this requires the daunting task of tracing all of the funds into (and perhaps out of) the account during the relevant period of time.  Even if you can trace the funds, there are judges who believe that once an account is commingled, it should be evenly divided. 

One would think that personal property should be easier.  Usually, but not in my most recent trial, there is little dispute as to whether an asset is premarital or not.  Usually, but not in my most recent trial, there is little dispute that a birthday present or other gift to one party during the marriage was a gift to that person, as opposed to a gift to the whole family.

During my trial, the position taken at some point, perhaps after a comment made by the judge, was that since the collection was displayed in the marital home, it became a marital asset.  Of course, if the exemption of an engagement ring which is not a marital asset and often kept in the marital home is clear - then why would any other gifted piece of personal property by different.  In fact, I asked the husband on cross examination whether his daughter had collectibles - he answered yes.  I asked then whether they were displayed in the marital home and again he answered yes.  I then asked him if he was making a claim to these assets as marital and he said no. 

While clearly the game was exposed by that point, the fact remains that if you want to make sure that at item is exempt, keep it separate and try to keep records.  The burden is on you. 

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Previously, I blogged about the trial in the McGreevey divorce.  In that entry, I wondered whether it was the desire for retribution that was driving the case and whether the legal and expert fees exceeded the matters at issue.  To see my prior post, click here.

The decision of the Court was released yesterday and unfortunately I was right.  As for the one party playing the victim throughout and until the end, that was evidenced by Ms. Matos McGreevey's statement released even before the decision was released. 

As to the decision, it was decidedly in favor of Mr. McGreevey on the major issues raised by his wife.  Whether the issues raised were ever real and bona fide issues, that is another story.  In any event, the trial judge was clearly frustrated with the parties and it showed in her decision.  To read the decision click here.

Some of the highlights of the decision and Judgment of Divorce are as follows:

-There is no obligation to pay alimony.  In fact, the Judge found that to the extent that there was a need for alimony, it was caused by the legal fee debt associated with the case.

-Mr. McGreevey's income for support purposes was $175,000 - approximately $25,000 more than his employability expert opined and significantly more than he claimed he could earn as a seminary student. Child support was based upon that income and his wife's former income (she was laid off just prior to the end of the trial.) The Child Support Guidelines were used and then enhanced slightly due in large part to the fact that Mr. McGreevey was being supported by his partner.  He did not get a credit for the support for his other child because he was not currently paying it.

-The wife's claim for celebrity goodwill did not fly nor did her claim that marital lifestyle should be fixed based upon the lifestyle provided by the State of New Jersey to the Governor and First Lady.

-Each side had to pay their own legal fees. 

-The wife's fees total fees were more than $525,000   after receiving a courtesy discount of approximately $125,000.  Only $50,500 had been paid to date.  Mr. McGreevey's fees totaled $498,000 and he had paid only approximately $170,000. 

Given the costs and the results, could it have possibly been all worth it?  Based upon the Court's decision, it seems unlikely.  That is, unless there was a desire to drag the other through the mud and exact vengeance in a public arena.  If that was the victory sought and received by either or both of the parties, then the system failed.

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Natalie Famous, an associate in our Bucks County, Pennsylvania office, wrote a terrific post on who gets the family photos  on the Pennsylvania Family Law Blog.

To see the post, click here. To view the Pennsylvania Family Law Blog, click here or at the link to the right of the page.

As to personal property issues in general, aside from avoiding the fight about these issues, if that is not possible, make sure that everyone knows exactly what is being divided.  We have a case where despite the fact that most everyone would think that the use of terms such as "bedroom set", "dining room set" and "living room set" meant simply the furniture in those rooms, a party is taking the position that  those definitions include all the sheets and bedding, all of the floor coverings, all of the wall coverings, all of the serving pieces, etc. in the dining room furniture, and worse.  There have been numerous motions where the husband continued to complain that he did not get his belongings.  Only after his greater inquiry, including his deposition, did we learn what he meant.  While I have my own beliefs as to whether the way the husband is litigating is a tactic to upset the wife and run up her fees, the better practice would have been (this was done by the firm that previously represented my client)  to specifically list each piece of furniture so such discrepancies never come up. 

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One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement.  I have several matters ongoing now where that is occurring.

In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances.  Put another way, they were only going to resolve visitation if my client made financial concessions.  The bad faith of the tactic was evident.

In fact,  in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits.  This does not even really come into play in high income cases that exceed the Child Support Guidelines.  That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money.  However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties. 

The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case.  At the outset of a case, the parties are required to attend a Parent Education program given by each county.  After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect.  Only then, do you get into custody and parenting evaluations with experts, etc.  Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.

A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows:  one parent is the traditional stay at home parent - the other is the Type A executive type that leaves the home at 6 a.m. and doesn't return home until 7 p.m.  Sometimes, that person travels substantially for business as well.  The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the  parent that works out of the home demands either custody or a 50-50 parenting arrangement. 

In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip.  That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents. 

That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts.  The children are now made part of the process and have to meet with the expert several times.  Their teachers may be contacted.  Their doctors and therapists may be contacted.  The parties' therapists may be contacted.  Other collateral sources may be contacted (neighbors, coaches, family members, etc.)  The price to pay on the family, aside from the legal and expert fees, is high - especially when the issue is for bargaining only.

Don't get me wrong.  I understand that there are good faith custody and parenting disputes that require this process.  While the toll is still the same, that may be unavoidable.  However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip.  The collateral damage may be great.

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Previously I blogged about the fact that cases have a life of their own and will only settle when both parties are ready.  As I was trying to settle a case today that is scheduled to start trial in Morris County next week, I was reminded of a related issue.

In this case, we have had a hard time getting the other side to negotiate.  They have taken a position that we don't think is reasonable nor supported by the facts or the law.  That said, we have made proposals to try to resolve the case.  In fact, at each time we have been required to negotiate (at the Early Settlement Panel, mandatory economic mediation (several sessions) and at an Intensive Settlement Conference), we have made proposals.  In some ways, it was against my normal practice to not bid against myself, but the client wanted to at least try to stir some movement. 

At each point, rather than provide a counter proposal, the other side has tried to wow us with, to put it nicely, "fuzzy math" in order to justify why they are right and we are wrong.  They have never, however, moved off of their proposal on support in any significant way. 

I finally had to tell the opposing counsel to just give me a number without the explanation or argument because I wasn't going to buy their theory, ever, and the theory didn't make a difference if the number was acceptable.

In fact, this is not unusual when trying to settle matters.  That is, sometimes the theories and explanations will bog things down.  The bottom line is that if  the parties agree on the number or a certain resolution of a non-financial issue, in many instances, it matters not at all how or why you got to that number.  In fact, the explanation may just start the argument again. 

Sometimes, it is more important to just give a number than explain how you got there.  If the number is fair and within the realm of reason, and the parties can live with it, it is sometimes better to be settled then win the debate which may only prove more costly.

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On March 27, 2008, the Appellate Division released the decision in Gotlib v. Gotlib.  This is a reported decision which means that it is precedential and must be followed by courts in the future. 

In this case, the plaintiff/ex-wife filed a motion seeking enforcement as to unreimbursed medical expenses and the payment of college expenses. She also sought to invalidate defendant/ex-husband's transfer to a third part for his share of the marital residence.

As to the issue of medical expenses, the parties were required per their Judgment of Divorce to equally share in these costs.  The plaintiff sought more than $23,000 in medical expense arrears, going back to 1996.  These expenses included those that were already awarded to her in 1997 when she was required to file an enforcement motion.  Though she was successful in the motion, the defendant never paid.  The defendant argued that plaintiff waived her right to enforce the Judgment's clear provisions requiring each party to pay one-half of the children's un-reimbursed medical expenses because she did not consult with him before the children visited certain physicians, and did not bill him on a monthly basis, as required by the Judgment.

The Appellate Division disagreed holding that a parent's obligation to pay un-reimbursed medical expenses should be deemed by a court reviewing a motion to enforce litigant's rights as an essential benefit to the parties' children. In this light, the right to receive these payments belong to the children, and is therefore is not subject to waiver by a custodial parent. That said, the non-custodial parent retains the right to question the reasonableness of any individual medical expense.

The Appellate Division made some interesting comments as to how parents should ideally act after a divorce:

"A parent from whom financial contribution is sought nevertheless retains the right to challenge the reasonableness of the medical expenses. Cooperation, discussion and consultation should be the guiding principles in any decision involving the welfare of the parties' children. In deciding what type of medical treatment is required, the need for the parties to behave and act like parents is paramount. This may require them to subordinate their adversarial interests as litigants in favor of their children's welfare."

They also set forth factors that should be considered when assessing medical expenses, as follows:

"Some of the relevant questions to be addressed when considering the reasonableness of a reimbursement request are: (1) was the treatment medically necessary; (2) was the medical treatment in response to an unforeseen emergency requiring immediate action; (3) did the treatment involve elective or cosmetic medical services, and if so, was it in the best interest of the child involved to undergo such treatment; and (4) in cases of elective or cosmetic medical treatment, was the decision economically sound, given the parties' financial resources. This list is by no means an exhaustive recitation of the issues to be considered in every case. These cases are, by necessity, factually sensitive. A proper resolution requires careful attention to the salient facts."

As to the college issue, the Appellate Division reversed the finding that the parties should equally share the costs remanded the matter to the trial court  to make factual findings, after conducting a plenary hearing, guided by the factors outlined in Gac v. Gac and Newburgh v. Arrigo. The reason for this was that the Judgment was silent as to how the parties would divide higher education expenses, however, in arriving at his decision, "the motion judge did not address the Newburgh and statutory factors reflected in N.J.S.A. 2A:34-23(a) ,,, The court simply appears to have divided the expenses equally."  In addition, the Court was concerned because the plaintiff also did not seek contribution from defendant until long after the expenses had been incurred, "thereby excluding him from the decision making process of whether his son should attend Curry College or whether his daughter should attend Ba'er Miriam Yeshiva, both private schools. (citations omitted).  Participation by both parents is an essential factor under Gac, expressly required by the JOD, and should have "weigh[ed] heavily against the grant of a future application. (citations omitted)."   

In Gac, a father was not required to pay for college because of similar reasons as in the case above.  This seemingly creates a contradiction in how medical expenses and college expenses are treated.  Seemingly, reimbursement for medical expenses cannot be waived for lack of prosecution of the arrears.  On the other hand, contribution for college costs can seemingly be waived if a parent waits until after college is completed to seek reimbursement.  The distinction, at least in this case, is that apparently, at least as to the medical expenses, the defendant was given the explanation of the medical expenses and the proofs near the time they were incurred and/or the defendant had knowledge of them - even if exact compliance with the Judgment was not made by the plaintiff. 

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            On June 21, 2007, the American Institute of Certified Public Accountants, “AICPA”, released the Statement on Standards for Valuation Services No. 1 (SSVS No. 1) – Valuation of a Business, Business Ownership Interest, Security, or Intangible Asset (“Standards”). These standards are effective for all valuation engagements accepted on or after January 1, 2008. The purpose of these Standards is to improve the consistency and quality of practice among CPAs that perform valuation services. The Standards were developed because Congress, government agencies and regulators have recently focused their attention on valuation issues, as well as the increasing demand for valuation services over the past 20 years. 

            The Standards specify two types of engagements: valuation engagements and calculation engagements. Valuation engagements would typically be the one required in a divorce matter.

            In determining whether the valuation engagement can reasonably be expected to be completed with professional competence, the standards require that the valuation analyst consider, at a minimum, the following: (a) the subject entity and its industry; (b) the subject interest; (c) the valuation date; (d) the scope of the valuation engagement (including the purpose of the engagement, any assumptions or limiting conditions that are expected to apply to the valuation, the applicable standard of value (i.e. fair market value or fair value) and premise of value (i.e. going concern), the type of report to be issued, the intended use and users and the restrictions on the use of the report); and (e) any governmental regulations or other professional standards that apply to the entity to be valued or to the valuation engagement.

            Additionally, in understanding the nature and the risks of the valuation services to be provided, the standards require that the expert should consider: (a) the proposed terms of the engagement; (b) the identity of the client; (c) the nature of the ownership interest, including control and marketability issues; (d) the procedural requirements of the valuation and whether they will be limited by either the client or circumstances beyond the client’s control; (e) the use and limitations of the report and the conclusion or calculated value; and (f) any obligation to update the valuation.

           

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In the unreported Appellate Dvision matter of Panza v. Panza, the Court reversed the trial court and remanded the matter back to determine how the litigant should be compensated for the delay in the division of an asset subject to equitable distribution.  The distribution was delayed because of the husband's failure to get a QDRO finalized.

Plaintiff appealed an order denying his motion for reconsideration of a previously entered order, which modified the parties property settlement agreement (“Agreement”), specifically altering equitable distribution of his Exxon Mobil savings plan. The parties had agreed that plaintiff’s Exxon Mobil savings plan would be divided equally for the coverture period, which they defined as the date of the marriage to the date the complaint for divorce was filed. The Agreement was incorporated in the judgment of divorce. 

Two years after the judgment of divorce, defendant moved to compel completion of the Qualified Domestic Relations Order (“QDRO”). Shortly, thereafter defendant moved to change the date of the coverture period from the date the complaint was filed to the date the judgment of divorce was entered, which would substantially alter her share of the plan proceeds. Plaintiff cross-moved to enforce the original Agreement. Although the parties requested oral argument, the trial judge decided the motion on the papers, and without explanation, changed the coverture period from the date the complaint was filed to the date the judgment of divorce was entered. In the same order, the judge denied defendant’s request that the Marx calculation be used to divide the savings plan. (Marx v. Marx, 265 N.J. Super. 418 (Ch. Div. 1993), applies to defined benefit plans, not savings plans.)

The delay in defendant receiving her share of the savings plan was the result of Exxon’s failure to provide the necessary documents to the forensic account. “Defendant should be compensated for the delay, but the compensation should be in the form of interest earned on her share during the period of delay pursuant to the parties’ Agreement, not by altering that Agreement. Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (App. Div. 1987).”

lawlibrary.rutgers.edu/decisions/appellate/a1842-06.opn.html

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Tasara Masaya v. Peter Griffin and Deirdre Newman

This case is an appeal from a final order of the Family Part. Peter Griffin was married to Deirdre Newman in 1985. They had two children. In 2000 Griffin and Newman divorced. The parties’ Property Settlement Agreement required that the two children remain the beneficiaries of Griffin’s $150,000 policy and his employer life insurance policy until their emancipation.  In 2004, Griffin had another child with Tasara Masaya. In 2005, Masaya filed a complaint for custody and child support.  The Court entered a Consent Order that provided Masaya with child support, arrears, child costs, and required Griffin to obtain life insurance of $200,000 to secure his child support obligation. In 2006, Masaya sought to enforce the Order regarding the arrears and the life insurance. Although Griffin was in the hospital at the time, the judge without knowledge of the PSA, awarded Masaya’s child 85% of the life insurance. 

Following Griffin’s death, an order to show cause was filed regarding the life insurance. The order to show cause informed the Court of the PSA, and the judge modified her previous Order. Masaya appealed. The appellate division cited Della Terza v. Estate of Della Terza, 276 N.J. Super. 46 (App. Div. 1994), when rendering its decision that “[w]hen incorporated in an agreement or court order, the parent’s obligation to provide such insurance for the benefit of his or her child gives the child an equitable interest in the proceeds of a policy of insurance on that parent’s life, regardless of the beneficiary designation in effect at the time or his or her death”.    

When a child of a deceased parent has an equitable interest in the proceeds of a life insurance policy, i.e. they are the beneficiary, because the deceased parent has an obligation to provide such insurance, that interest is enforceable as an equitable assignment. Taking it one step further, when a parent has other children born after the order establishing the obligation to maintain life insurance for the child of the marriage, the prior obligation is enforceable regardless of a subsequent redesignation of beneficiaries. In essence, the first in time still has an enforceable right under the terms of the Property Settlement Agreement and a subsequent child and subsequent obligation, does not nullify that obligation. 

Clients must be aware that if their Property Settlement Agreement obligates them to maintain a life insurance policy for the benefit of their child from the first marriage, oftentimes to secure a child support obligation, a subsequent remarriage and additional children born to that party do not trump their obligation to maintain satisfactory life insurance pursuant to the terms of their Agreement. 

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 At the beginning of a matter, often at an initial consultation, we will ask a client to provide us with a list of all of their asset.  While someone may not know all of the details, they will typically know the major assets such as real estate, bank accounts, brokerage accounts, retirement assets, automobiles, antiques, art and jewelry. 

That said, there are other assets that some people overlook or do not even realize are assets.  The following are some of those things which may be assets or otherwise have value that will be subject to equitable distribution:

• Frequent flyer mileage
• Security deposits (e.g., utilities, car lease)
• Timeshare property 
• Business AAA accounts or business distributions of cash/property 
• Memberships (e.g., country club) 
• Bond or deposit for country club 
• Unused vacation, sick leave
• Patents, copyrights, royalties 
• Income tax refunds
• Income tax capital loss carry-forwards
• Income tax charitable contribution carry-forwards
• Marketable govt licenses (radio licenses, commercial fishing quotas)
• Special retirement benefits (“golden parachutes”) 
• Retirement - life insurance benefits 
• Retirement - medical benefits 
• Retirement - survivor benefits 
• Hobby or other collections
• Contract rights from marital employment (e.g., insurance renewal payments for agent)
• Affiliation “rewards” programs (e.g., points or discounts for credit card use)
• Entertainment tickets, season ticket options
• Business vehicle for personal use
• Prepaid rent, leases, subscriptions
• Burial plots
• Life insurance cash surrender value (or perhaps death benefit if insured is elderly)
• Tort, worker’s comp claims
• Stock options, restricted shares (vested or unvested)
• Hangar lease (for aircraft)
• Hotel or credit card points
• Cash
• Small business retained earnings
• US Savings Bonds, other securities
• “Hidden value” items - rare items of personal property (e.g., antiques), rare pets, collectibles
• Options to purchase property
• Unpaid commissions on deals set to close
• Referral fees (e.g., for personal injury lawyers)
• Security or performance bonds posted
• Car insurance prepaid
• Taxes prepaid
• Zero coupon bonds
• Assets held by others on spouse’s behalf
• loans receivable

The goal of equitable distribution is to effectuate a fair distribution of assets - all assets, not just those commonly thought of.  For these less than apparent assets, people must give some thought to their lifestyle and financial history so that they do not share in an asset that may have value.  That is not to say that each of the above has distributable value in every case nor will it be worth it fight over something that has nominal value.  However, you want to make sure that you identify all of the assets so that neither party gets an improper windfall because the other person did not know that an asset could/should be divided.

Click here for a printable copy of this checklist.

 

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