Posted on March 4, 2010 by Eric S. Solotoff

DIVORCE PLANNING COMES BACK TO BITE THIS HUSBAND

We have all heard stories about spouses hiding assets to keep them away from the other spouse during a divorce.  In fact, I am sure that many lawyers have even had clients ask how they can do it.  Hopefully, the lawyer told them the straight answer -don't do it - and if you do and get caught, it will be far worse for you. 

A litigant named Eric Barzda learned this the hard way as noted in the unreported decision (non precedential) Appellate Division decision released on March 3, 2010.

In this case, in 1996, Mr. Barzda was  was going through a divorce proceedings with his former wife.  While the divorce  was pending and even thereafter, he feared that his wife would assert a claim against property in Hightstown he acquired with his girlfriend, the defendant in this matter.  In order to  shield this property from a claim from his wife, he transferred his interest in the property to the girlfriend for $1.  However, he claimed that there was an oral agreement that he would be a silent partner.  He later filed for bankruptcy relief and did not list this property as owned by him in the bankruptcy - obtaining a discharge in what was deemed a no asset case.

In 2006, after the romantic relationship ended, the plaintiff here filed suit seeking his equitable share of the property. The trial court, as affirmed by the Appellate Division, used the concept of judicial estoppel to deny him relief.  Judicial estoppel essentially prevents litigants from taking inconsistent positions regarding the same issue/property in different legal proceedings. 

In an interesting quote, the Appellate Division said:

Here, plaintiff's conduct provides almost a textbook example of facts calling for the applicability of judicial estoppel. By his own words, plaintiff attempted to conceal his alleged interest in this real property to mislead his former espouse and frustrate any attempt on her part to seek legal recognition of a potential equitable interest in the property. In furtherance of this scheme, plaintiff deliberately failed to disclose his alleged interest in the petition he filed under oath before the federal bankruptcy court in order to induce that tribunal to give him relief from the legitimate claims of his creditors.

It will be interesting to see if in light of this, the ex-wife goes after him for fraud in the divorce.  In any event, the saying "don't do the crime if you can't do the time" seems particularly applicable here.
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Posted on February 6, 2010 by Eric S. Solotoff

EVEN CELEBRITIES HAVE PROBLEMS DIVIDING THEIR PERSONAL PROPERTY IN DIVORCE

In today's New York Daily News, there was an article that actress Kate Walsh and her husband are going to flip a coin to determine who gets to pick first and then they will alternate picks as they divide their personal property in divorce.

You don't have to be a celebrity to follow the alternate selection method.  In fact it is very common when people cannot mutually agree upon a distribution of their furniture, furnishings and personal property.  Another method sometimes used is that one spouse makes two ostensibly equal lists of the personal property and the other spouse gets to choose which list they want.  There are obviously many other ways to accomplish this as well.  There are no absolute rules, other than perhaps, the custodial parent will get the children's furniture. 

Perhaps the only other absolute rule is that judges (and attorneys) hate getting involved in this type of dispute. 

Of course, that is not to say that there cannot be disputes about valuable items like furs, jewelry, art, antiques, collections, etc.  That, however, is very different than ordinary furnishings and household items that tend to have little value once you bring them home.

So if you are divorcing and cannot agree on the distribution of the furniture, etc., you too can act like a celebrity, flip and coin and alternate picking until it is all gone.

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Posted on November 24, 2009 by Eric S. Solotoff

MUSINGS ON PRINCIPLE VS. LITIGATION

I have a matter now that will likely go to trial in the early part of the new year.  It appears inevitable. 

Sometimes there are just those cases where a client is put in the impossible position of having to make a "Hobson's choice" accepting a patently unfair or otherwise unpalatable settlement or taking their chances at trial.  I am not talking about accepting a deal that is on the low end of the "realm of reason" or agreeing to a little more or a little less in parenting time.  Rather, in order to get the case over with and "stop the bleeding", they have faced with the proposition of having to take less than is reasonable or agree to more/less parenting time then is fair, appropriate and/or in the best interests of the children. 

One can only hope that if the choice is trial, that the judge will see that the other side is simply not reasonable.  In that case, the hope is that the trial judge will make a generous award of counsel fees to make the oppressed party whole, or close to it, for having deal with unreasonable positions, etc.  I had a trial last year where the husband refused to negotiate, at ll.  He sought alimony, without basis, and made us try every single issue, including the exemption of clearly premarital property, the exemption of clearly post complaint property, even the exemption of the engagement ring.  In that case, even though my client earned far more than her husband, she was awarded a generous counsel fees. 

Again, she had no choice but to try the case.  Unfortunately, that appears to be the case for my current client if the choice is made by the client to fight for what she is entitled to.

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