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:
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
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 |