Posted on March 7, 2009 by Eric S. Solotoff

TRIAL IS AN EXPENSIVE WAY TO GET YOUR POUND OF FLESH

I just completed a 10 or so day trial (really a binding arbitration).  Why did it take so long?  Were there complicated valuation issues? No.  Complicated alimony issues? No.  Custody issues?  No - custody and parenting time were already settled. 

The answer in large part was one party's bad faith and need to extract a pound of flesh.  He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense.  The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007.  The case lingered and trial did not start until the fall 2009.  Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal.  Why - as every knows, real estate values were going down.  Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage.  Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur.  She had to get another one in August 2008 before the trial started.  The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.

 

The husband got an employability expert to determine the wife's earning capacity.  This is not unusual.  What caused a waste of time is that he lied to his expert about what his wife did when he had a small consulting business in the late 90s, trying to portray her as not being out of the workforce, despite the fact that she probably worked only a few hours per month.

Plaintiff's direct examination was 3 to 4 hours.  The cross examination was several days.  Why?  Despite the fact that he had no evidence of it nor would it be relevant, the husband had his lawyer try to pursue an adultery claim.   He had his lawyer try to pursue issues of parenting alienation despite the fact that custody was settled and the joint expert blamed his relationship with the children in larger measure on his conduct.

In addition, he had his lawyer nitpick on minutiae that was not relevant to anything.  Even if my client got the answer wrong, it would not prove that she was not credible. 

In fact, both this cross examination and the trial in general was torturous because of the costly and needless waste of time by the husband delving into irrelevant issues, which then had to be rebutted.  This brings up another point.  Just because you are having a trial does not mean you have to address every issue and every fact as to every issue that has every come up in a case.  Courts and arbitrators don't care about such nonsense.  It only causes more in counsel fees.  While it would be easy to cast aspersions at opposing counsel's trial capabilities, clearly much of it was following the marching orders of her client - at great and outrageously needed expense of both parties.

One can only hope that when all is said and done, counsel fees will be assessed such that the husband will pay for the folly he created.
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Posted on September 25, 2008 by Eric S. Solotoff

THE VALUE OF REAL ESTATE - PROBLEMS IN THIS EVER CHANGING MARKET

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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