The Progressive Lawyer: Use of Statutory Factors as an Advocacy Tool

Categories: Divorce & Family Law

by Curtis J. Romanowski, Esq., Chairman
Collaborative Family Institute, LLC

In the course of my prior life as a management consultant to the Fortune 500, I was faced with issues involving client system compliance with the ISO 9000 International Standards for Quality Management. The five International Standards which form the ISO 9000 series of quality assurance standards readily lent themselves to the matrix approach I will discuss in this article. While I will use for example purposes the statutory factors obtaining to New Jersey – my home jurisdiction – this progressive approach to advocacy can be effectively employed in any jurisdiction by simply substituting the appropriate statutory components.
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There are several basic tools or road maps that can be applied to guide divorce lawyers in effectively organizing and presenting their cases. An immediately effective tool, so obvious but also so often forgotten, is comprised of the factors that are contained within our Statutes and Rules. These guideposts are typically not presented to the Courts graphically in arguing our cases and motions. If we accept as an initial premise that the family courts, regardless of jurisdiction and vicinage, recognize that these standards and rules need to be considered, we should therefore, as an important part of our testimonial or briefing process, lay out the standard and rule and apply the facts of our cases to the criteria in the most simplistic and straightforward manner.

Consider for the moment that, at the end of a contentious trial, the Court asks us to present proposed findings of fact and conclusions of law. Using the guideposts our Statues and Rules present, the matrices that follow will permit an organized presentation of the factual predicates that form the basis of our cases. This approach is not limited to use following trial. It can also be effectively used for pre-trial and pre-motion arguments, as well as for early settlement panel presentations and settlement conferences.

The importance of proceeding in this fashion can be seen in the Statutes themselves. For example, in N.J.S.A. 2A:34-23.1, New Jersey’s equitable distribution Statute, the Legislature has mandated:


In every case, the court shall make specific findings of fact and evidence relevant to all issues pertaining to asset eligibility or ineligibility, assets valuation, and equitable distribution including specifically, but not limited to the factors set forth in this section. 

 

Whether contained in Rule or Statute and regardless of jurisdiction, there are always factors that are to be considered before any Court can make its determinations. All too often, these factors are ignored or at least not presented in the most coherent manner possible. By way of illustration, N.J.S.A. 9:2-4, New Jersey’s child custody statute, contains 14 factors which, when presented in graphical format, truly provide a framework for presentation and later argument; and ultimately for the preparation of findings of fact and conclusions of law following trial. A matrix can easily be constructed for each of the 14 statutory factors, with a corresponding space for fleshing out an argument for each. Here’s the first two, for example:


FACTOR

ARGUMENT
1 the parents’ ability to agree, communicate and cooperate in matters relating to the child;
2 the parents’ willingness to accept custody and any history of unwillingness to allow visitation not based on substantiated abuse;

How better to present a client’s case concerning the mandatory factors than by reviewing them one-by-one. It is through such a factor-based analysis that counsel can best lay the foundation for the proofs intended to be produced and the arguments intended to be made. Consider the application of the matrix approach in the context of the following hypothetical fact pattern:

Wilma and Fred married when they were relatively young. When she graduated from college, Wilma entered the teaching profession, worked in a parochial elementary school for the first five years before the birth of the first of the parties’ three children, and then became a “stay-at-home mom.” Fourteen years later, Wilma was still a stay-at-home mom with two teenage sons and an eleven year old daughter, while Fred pursued his career as an attorney.

Recently, Wilma has obtained employment as a receptionist. When this matter came to Court, the parties had accumulated a marital home worth $275,000, and encumbered by a $175,000 mortgage; tangible personal property having an appraised resale value of $25,000; two cars, Wilma’s Volvo Station Wagon worth $75,000 and Fred’s Mercedes worth $90,000; a stock portfolio of $40,000; a money market account worth $60,000; and a 401K interest worth $120,000. The parties have revolving charges totaling $9,500. Wilma and Fred’s divorce was filed at a time when Wilma was 43 and Fred was 47. The following five matrices present Wilma’s version of the case, offered with suggested advocacy based upon the fact pattern reflected above:

 

Matrix #1: Asset breakdown


Identification of Asset

Title Ownership of Asset

Value

Exemption
Description
1 Real Property
a. Marital Home

Joint

$275,000
2 Bank Accounts, Certificates of Deposit
a. Money Market Account

Joint

$60,000
3 Vehicles
a. Mercedes

Joint

$90,000
b. Volvo Station Wagon

Joint

$75,000
4 Tangible Personal Property
a. Household effects

Joint

$25,000
5 Stock and Bonds
a. Portfolio

Joint

$40,000
6 Pension, Profit-Sharing\ Retirement Plan(s), IRAs, 401Ks, etc.
a. 401K

Husband

$120,000
7 Businesses, Partnerships, Professional Practices

N/A
a.

$
8 Life Insurance (cash surrender value – no death benefit)

N/A
a.

$
9 Other (specify)

N/A
a.

$
TOTAL VALUE OF INCLUDABLE ASSETS

$685,000
TOTAL VALUE OF EXEMPT ASSETS

$0
TOTAL GROSS ASSETS

$685,000

 

Matrix #2: Liability breakdown


Identification of Liability

Responsible Party

Total Owed

Exemption
Description
1 Mortgages on Real Estate
a. Marital

Joint

$175,000
2 Other Long Term Debts

N/A
a.

$
3 Revolving Charges
a. MasterCard

Joint

<$5,450>
b. Visa

Joint

<$4,050>
4 Other Short Term Debts

N/A
a.

$
5 Contingent Liabilities

N/A
a.

$

TOTAL GROSS LIABILITIES(Other Than Contingent Liabilities)


$184,500

NET WORTH

$500,500

 

Matrix #3: Equitable distribution analysis in accordance with New Jersey’s N.J.S.A. 2A:34-23.1


FACTOR

ARGUMENT
1 Duration of the marriage The parties’ twenty year marriage was of significant duration. A distribution to Wilma of anything less than half of the marital estate would therefore be inappropriate. However, it is urged that the distribution be disproportionate, in Wilma’s favor.
2 Age and physical and emotional health of the parties Wilma is now 43 years of age and Fred is 47 years of age. Both are in good physical and emotional health.
3 Income or property brought to the marriage of the parties The parties brought very little property or income to the marriage. The parties were young college graduates, starting out in their respective careers. Therefore, each party was on roughly equal financial footing at the marriage’s outset.
4 The standard of living established during the marriage The parties lived a moderately comfortable lifestyle during the marriage. This lifestyle included annual family vacations, frequent dining out at better restaurants, season tickets at various sporting events, and other leisure activities. Equitable distribution should ensure that Wilma, taking into account her economic circumstances discussed herein, will be able to maintain a reasonably comparable lifestyle.
5 Any written agreement made by the parties before or during the marriage concerning the arrangement of property distribution No such agreement before or during the marriage.
6 The economic circumstances of each party at the time the division of property becomes effective Wilma has tentatively reentered the workforce as a receptionist. She will remain dependant upon what she must respectfully receive from Fred in alimony and equitable distribution. The distribution of the marital estate should reflect this circumstance in conjunction with factors 7 and 15.
7 The income and earning capacity of each party including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for the children and the time and expense necessary to require sufficient education or training to enable the party to become self- supporting at a standard of living reasonably comparable to that enjoyed during the marriage Wilma is a college graduate with about five years’ teaching experience over fifteen years ago. She has been completely out of the job market ever since. To teach again, she is required to become re-certified and complete continuing education courses. In sum, for Wilma to re-enter the teaching field will require significant time and effort in addition to her custodial responsibilities over two teenage sons and an eleven year old daughter. Wilma now is working twenty hours a week as a receptionist. Fred however, has been employed as an attorney in a small firm for about twenty years. His earning capacity continues to grow conservatively, as it did during the marriage. Fred’s ability to regenerate income is therefore substantially greater than Wilma’s. To compensate for this obvious disparity, equity demands that Wilma receive a greater portion of the marital assets.
8 The contribution by each party to the education, training or earning power of the other For the past fifteen years, Wilma has worked as a homemaker and cared for the children. This clearly allowed Fred the freedom and the required work time to succeed at his profession. If Wilma had not made this non-monetary contribution to the marriage, Fred would not have the standing and the earning capacity he enjoys today. This essential non-monetary contribution should weigh heavily in an equitable distribution award, as it was the “bedrock” upon which Fred built the monetary estate.
9 The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property as well as the contribution of a party as a homemaker Wilma has contributed significantly as a homemaker in the preservation and appreciation of the marital home. Apart from her daily routine of keeping the house, Wilma has, during the course of the marriage, undertaken several home improvement and beautification projects, both inside and outside the home. Her efforts have contributed to the value of the marital estate and the distribution should so reflect.
10 The tax consequences of the proposed distribution to each party This is a neutral factor.
11 The present value of the property Upon considering factor 12, equitable distribution should not ultimately leave Wilma with just the marital home and effects without additional liquid assets. While the home accounts for a significant portion of the marital estate and is necessary – as discussed below – for the children, without more, it offers inadequate financial security to Wilma.
12 The need of a parent who has physical custody of the child to own or occupy the marital residence and to use or own the household effects Fred has consented to Wilma as the sole residential parent. The children are in or nearing their teen age years and are very involved in their schools and local activities. It is clearly not appropriate to uproot the children from the marital home until after all have graduated from high school. Thus, Wilma should receive the marital home as part of equitable distribution.
13 The debts and liabilities of the parties The only debts that the parties owe is the $175,000 mortgage on the marital home and an additional $9,500 in revolving credit.
14 The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children The parties’ two sons, 13 and 15, are on track for college educations. The parties’ eleven year old daughter is also showing promise at school. While the parties have kept their debts somewhat under control, they have not saved any significant portion for their children’s education.
15 The extent to which a party deferred achieving their career goals Wilma’s career as a teacher came to a halt about fifteen years ago with the birth of the parties’ first son. Her responsibilities as a homemaker and as a mother have prevented her from resuming her career. Her absence from the workforce was also a part of the marital plan and mutual agreement.
16 Any other factors which the Court may deem relevant None at this time.

 

Matrix #4: The argument


Asset/Liability

Value

% to Wife

$ to Wife

% to Husband

$ to Husband
The Marital Home $275,000 value minus$175,000 mortgage

75%

$75,000

25%

$25,000
401K $120,000

40%

$48,000

60%

$72,000
Tangible personal property $25,000

60%

$15,000

40%

$10,000
Stock portfolio $40,000

50%

$20,000

50%

$20,000
Money Market Account $60,000

50%

$30,000

50%

$30,000
Volvo Station Wagon $75,000

50%

$37,500

50%

$37,500
Mercedes $90,000

50%

$45,000

50%

$45,000
MasterCard <$5,450>

50%

<$2,725>

50%

<$2,725>
Visa <$4,050>

50%

<$2,025>

50%

<$2,025>

Wife’s Total Entitlement

$265,750

Husband’s Total Entitlement

$234,750

Beginning with the argument that Wilma should be entitled to 75% of the $100,000 equity in the marital home, while Fred should retain 60% of his 401(k), we have set the scene for some “horse-trading.” While keeping the total entitlements the same at $265,750 for Wilma and $234,750 to Fred, logical trade-offs can be negotiated or urged to optimize the plan. Since Wilma will be retaining the marital home, let’s start by pushing the remaining 25% of its $100,000 equity to her side of the table. Fred, on the other hand, wouldn’t mind retaining more of his 401(k). Therefore, we would argue that he be allowed to retain an additional $28,200. That transaction would leave Fred up by $6,400.

If Wilma retains all of the tangible personal property, the extra $10,000 she would receive from Fred’s share would leave Fred down by $13,600. However, we would like each party to retain their own cars, and Fred’s is worth $15,000 more than Wilma’s. Netting Fred’s $37,500 interest in Wilma’s car against her $45,000 interest in Fred’s Benz, Wilma’s share of the adjusted distribution would trail Fred’s by $1,400. Fortunately, that’s exactly the difference between the $5,450 MasterCard debt, which Fred will now assume, and the $4,050 Visa bill that will become Wilma’s responsibility. Here’s what the matrix would look like.

Matrix #5: The practical adjustment:


Assets/Debts To Be Assigned To Wilma

Assets/Debts To Be Assigned To Fred
Name of Asset

Value
Name of Asset

Value
Marital Home (net value)

$100,000
Marital Home (net value)

$0
401K

$19,800
401K

$100,200
Tangible Personal Property

$25,000
Tangible Personal Property

$0
Stock Portfolio

$20,000
Stock Portfolio

$20,000
Money Market Account

$30,000
Money Market Account

$30,000
Volvo

$75,000
Mercedes

$90,000
Visa

<$4,050>
MasterCard

<$5,450>
Total Value:

$265,750
TotaI Value:

$234,750