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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Several months ago, I posted a blog entry entitled "All Cases Have a Life of Their Own"  To view that entry click here.  The premise was that while most cases settle, they usually will not settle until both parties are ready, emotionally and otherwise, to move on.  That may be the case even if a party's best case resolution is on the table from the outset.  If they are not ready to settle at that time, they will not.

In a more rare occasion, a party is never ready emotionally to settle and a case just has to get tried.  That is unfortunately the case in a matter that I have that is going to trial next week.  Because of the other party's mind set, my adversary has for many months told me that the case would be tried.  He did not tell me this as a threat or to get leverage - just as a fact.  In fact, a settlement proposal we made has been pending for about a year without a response.  In addition, no bona fide efforts were made by the other side to settle at either the Early Settlement Panel, mandatory economic mediation or the Intensive Settlement Conference.  During the party's recent deposition, he said that "it was too late" to settle, once my client hired an attorney. 

Obviously, this is no consolation to my client who has been eager to try to resolve this matter from the start.   Hopefully, the remedy will be a generous award of counsel fees at the end of the trial to compensate my client for having to endure the husband's conduct which has been nothing short of unreasonable, if not bad faith.

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I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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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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Some times, despite all of the parties' best efforts - or in other cases, where one or both parties have no desire to settle, a case has to be litigated.  Trials are costly, for reasons you would think of, and also, for reasons that most people don't consider.  A good rule of thumb is that for each day of trial, there will be one or two days of time for preparation.  When you consider that both parties have to testify, as well as accountants, business appraisers, custody evaluators, real estate appraisers, employability experts, as well as a whole host of lay witnesses depending on the issues involved in a case, the actual known costs can be substantial. 

The hidden costs are the time spent waiting around.  Often times, you may be in the Courthouse from 8:30 a.m. to 4:30 p.m., and with interruptions, other matters and breaks, you only get a 3 or 4 hours per day of trial time.  Additionally, it is not uncommon for trial dates to not only be non-consecutive, and sometimes, there are several weeks if not months between dates.  I am currently in the midst of a trial where we had one half day in October 2007, another half day or less in January 2008 and another date scheduled for April.  Each time you go back, you have to re-prepare. 

While some cases that require a decision need to be arbitrated because the parties may not want to present certain issues to a Court, other cases that require a decision may be good candidates to avoid the above delays.  Often with arbitration, you can select days if not weeks in blocks thus condensing the time that the process takes.  In addition, without the interruptions that you will inevitably have in a court, the time spent at the arbitration can actually be spent arbitrating.

In advance of the arbitration, the parties can decide whether they want it to be binding (i.e. essentially, what the arbitrator decides goes) or whether there is a right of appeal.  The parties can decide whether then want a court reporter present or not.  The parties can even designate the scope of an appeal.  While the arbitration act provides a very limited scope of review, parties can agree that the decision can be appealed for the same reasons as could a judicial decision be appealed.  However, in what was made clear in a 2007 reported decision, the parties cannot confer jurisdiction to hear the appeal on the Appellate Division. Rather, the matter would have to be decided by the trial judge.  Click here for a copy of the case.

I recently completed a more than 10 day arbitration and the experience was extremely positive, for all of the reason expressed in this post. 

In any event, while there could be added costs associated with paying an arbitrator and court reporter, if the arbitration can be done more efficiently, if not more quickly, than a trial, it is a viable option in the right case. 

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While statistically, 99% of all cases settle, some cases take longer than others to get there.  Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.

I, for one, have been skeptical of mediation in a number settings.  The first is at the onset of a complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery.  I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end.  The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties' relationship).  In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable.  The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything.  Thus, a method meant to avoid litigation can often create litigation. 

However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.)  The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff.  This is meant to ferret out the true custody dispute.  That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with.  As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.

The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel.  Attorneys usually are required to attend with clients.  This is often the time when a case that is more than your run of the mill case will settle.  By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation. 

In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on.  Put another way, when either the client's attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed.  In other cases that I have seen, sometimes one of the attorneys doesn't handle exclusively family law matters and/or is otherwise less confident.  In these cases, the mediator essentially can let the attorney know that the deal is fair.

I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months.  However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.

The bottom line is that most people truly want to settle their cases in a fair way.  We always hear anecdotally that cases that settle come back to court far less often than cases that are tried.  We also hear that people that settle their cases are far more satisfied with the result than if they tried the case.  In a trial, the litigant gives up control of their life to a judge that doesn't know them and will only hear bits and pieces of their story - along with the hundreds of other cases they have.  Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.

Check back for future entries regarding arbitration and trial practice.  While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.

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