Wednesday, September 20, 2017
Lately, I have vehemently spoken out about trying to exert revenge on your ex in Court. It's just a bad idea, as the courts are NOT equipped to dole out your revenge, and frankly, you're not special because in divorce court, every Judge has about 25,000 cases.
However, if you are the vengeful type, I fully support self-help (within the confines of the law, of course.) Below is one of the more satisfying revenge stories I've read in divorce. Enjoy!
After 37 years of marriage, Jake dumped his wife for his young secretary.
His new girlfriend demanded that they live in Jake and Edith’s multi-million dollar home. Since Jake had better lawyers, he prevailed. He gave Edith, his now ex-wife, just 3 days to move out. She spent the 1st day packing her belongings into boxes and crates.
On the 2nd day, she had two movers come and collect her things. On the 3rd day, she sat down for the last time at their beautiful dining room table by candlelight, put on some soft background music, and feasted on a pound of shrimp, a jar of caviar and a bottle of Chardonnay.
When she had finished, she went into each and every room and stuffed half-eared shrimp shells dipped in caviar into the hollow of all the curtain rods. She then cleaned up the kitchen and left. When Jake returned with his new girlfriend, all was bliss for the first few days.
Then slowly, the house began to smell. They tried everything- cleaning, mopping, and airing the place out. Vents were checked for dead rodents and carpets were cleaned. Air fresheners were hung everywhere. Exterminators were brought in to set off gas canisters during which they had to move out for a few days and in the end they even replaced the expensive wool carpeting. Nothing worked.
People stopped coming over to visit. Repairmen refused to work in the house. The maid quit. Finally, they could not take the stench any longer and decided to move.
A month later, even though they had cut their price in half, they could not find a buyer for their stinky house. Word got out and eventually even the local realtors refused to return their calls. Finally they had to borrow a huge sum of money from the bank to purchase a new place.
Edith called Jake and asked how things were going. He told her the saga of the rotting house. She listened politely and said that she missed her old home terribly and would be willing to reduce her divorce settlement in exchange for getting the house back.
Knowing his ex-wife had no idea how bad the smell was, he agreed on a price that was about 1/10th of what the house had been worth, but only if she were the sign the papers that very day. She agreed and within the hour, his lawyers delivered the paperwork.
A week later, Jake and his girlfriend stood smiling as they watched the moving company pack everything to take to their new home...
Including the curtain rods.
Monday, March 27, 2017
Double-dipping is only awesome when you represent the outspouse. The rest of the time, it sucks. In divorce, "double-dipping" refers to when an asset (which was previously awarded to one spouse in equal division of the estate) is counted again for income for support purposes.
Double-Dipping is generally barred in pension/retirement. Thus, if you are the payor, and you already paid your ex-spouse half your pension, when you finally receive it as an income stream, you would not have to then pay alimony based on its receipt.
What about for division of a business? For example, when a business is valued and the owner spouse buys out the non-owner spouse's interest, future support obligations to the spouse who relinquished his or her interest will be determined based upon the entire income stream produced by the business. This could occur with any income-producing asset (such as a pension or annuity) when it is valued based upon its projected, future income stream and assigned to the earner spouse after an equalizing payment to the non-earner spouse.
According to the California Court of Appeal in Marriage of 1Vhite ( 1987) 192 Cal. App. 3d 1022, 1026, the flaw in the ··double dipping" argument is that spousal support considerations are separate and distinct from property division concepts. The Court found that a spouse who wants pension benefits treated as income is not claiming entitlement as a co-owner, but instead is asserting that those payments cannot be ignored when calculating the ability of the pensioned spouse to pay spousal support. Calling the double-dipping theory a "fallacy," the Court found "in every case where one spouse receives pennanent spousal support from the other spouse, the source is from the separate property of the paying spouse, including ... earnings or property which were once the community property of both spouses.." Id at 1028 (quoting In re Marriage of Epstein, 24 Cal. 3d 76, 91 n.14). Marriage of White remains good law.
However, distinctions can me made where business cash-flow is reinvested to capitalize or diversify a business. In 2009, the California Court of Appeal held that a trial court acted within its discretion in calculating an obligor's income for spousal support purposes without including funds derived from the obligor's company that he used to diversify the business so that it could remain a viable entity, thus attributing t hose funds to the business instead of the obligor, where the reinvested funds were reasonable expenses properly chargeable to the business. Marriage of Blazer (2009) 176 CA4th 1438, 1447-1448.
In Marriage of Blazer, the parties were married in 1982 and separated in 2002. Husband was a partner in Blazer-Wilkinson, LLC ( BW), a brokerage company that bought and sold produce. Temporary spousal support was set at $57,224 per month during the pendency of the divorce.
In 2004, the trial court valued the community interest in BW at $5,600,000. Wife received other property plus an equalizing payment of $1,340,000 for her share of the business. Temporary spousal support was reduced to $52,000 per month pending further findings of the court.
In 2006, temporary spousal support was reduced to $30,000 per month retroactive to August 2004 and permanent spousal support was set at $20,000 per month beginning January 1 , 2006. In determining Husband's income available to pay support, the court excluded profits from the business. which were needed to maintain adequate capitalization and to diversify. All other profits were considered as available to Husband. The court specifically rejected Husband's argument that his buyout of Wife's interest in BW was a factor that should eliminate spousal support.
Wife appealed the decision, arguing that the trial court abused its discretion by excluding a portion of husband's income when considering his ability to pay support. Husband cross-appealed on the grounds that the support order unfairly allowed the wife to ''double dip" into the income stream from his business
The Court of Appeals disagreed with Wife, finding that there was a need to diversify and to maintain adequate capital in the business. In reaching its decision, the court relied in part on the California child support statute, which excludes income required for the operation of a business from income. Thus, amounts required to achieve such were not available to Husband. It should be noted that credible expert testimony from a CPA to the effect that reinvesting the funds was necessary for Husband's business to survive likely swayed exercise of the trial court's discretion in Husband's favor without such credible testimony, a contrary result (i.e., charging Husband with the funds reinvested in the business for purposes of determining his ability to pay spousal support) may well have been reached.
The Court of Appeals also disagreed with Husband. The Court's decision was based primarily on the lack of evidence before it that BW had been valued using a stream of future income. Although Husband's expert testified that he assumed that BW had been valued using the capitalization of excess earnings method that implicitly ties the val ue to Husband's future earnings, the court was not convinced. In fact, the court stated that even though the expert's testimony had not been contradicted, it was not conclusive to either the trial court or the Court of Appeals.
Based on the Court's explicit statement that the record was devoid of whether the business valuation included a stream of future income, I believe argument could be made that goodwill is the expectation of what will be earned in the future. Since goodwill is a component of the business valuation, this results in a "double dip" scenarios.
Thus, "double dipping" appears to be permitted unless (i) the parties explicitly agree to an ··Anti-White'' order during negotiations; (ii) a portion of the business' cash flow is required to be reinvested to either capitalize or diversify the business; or (iii) sufficient evidence is presented that demonstrates a business is valued using a stream of future income. For the third possibility, credible CPA testimony will be key.