The Importance of Family Counseling in Dissolution and Legal Decision Making Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

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Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

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If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

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Prenuptial Agreements in Arizona

A recent article in Huffington Post describes the circumstances surrounding the divorce of Peter and Elizabeth Petrakis.  Peter, reportedly worth $20-30 million, executed a prenuptial agreement with Elizabeth before the marriage, but a trial judge declared the agreement unenforceable due to fraud in the inducement.

Crumpled (Woodnick)According to the story, Peter asked Elizabeth to sign a prenuptial agreement three months before the two were to wed in 1998.  The agreement stated that Elizabeth would not be entitled to her share of the community property, but would be given $25,000 for every year of the marriage (a significantly smaller amount than the appreciation of assets she would stand to gain without the agreement).

Elizabeth refused to sign until four days before the wedding when Peter promised to terminate the agreement upon the birth of the couple’s first child.  Although prenuptial agreements typically must be made in writing, the court determined that Peter’s unkept promise fraudulently induced Elizabeth to sign the contract.

Prenuptial agreements are a useful tool for couples who wish to determine the disposition of their own assets in the event of a future divorce – protecting businesses, personal property, and securing assets for children are common reasons that parties might seek a prenuptial agreement.  Such agreements take the form of written contracts and are rarely overturned unless the agreement was acquired by coercion or misrepresentation, or because the documents themselves were not prepared in accordance with written law.

For Arizona prenuptial agreements, A.R.S. § 25-201 et seq. contains provisions outlining the necessary form of a prenuptial agreement, how the agreement should be enforced, and other requirements and restrictions.  Although a prenuptial agreement is enforceable without an exchange of consideration (as is necessary for most other contracts), it must be in writing and must be signed by both parties, at minimum, to have legal effect.

Heart Carabiners (Woodnick)The agreement becomes effective once the parties are married, but will not be enforced if one of the parties misrepresented (or failed to disclose) their assets, coerced the other party into signing, or if the agreement was “unconscionable” at the time of signing (a legal issue for a judge to decide).  Needless to say, the existence of a prenuptial agreement is a critical issue when the marriage begins and if the marriage is dissolved.

If you would like to read the original article in Huffington Post, click here.

Child Support and College Tuition

In any marriage dissolution involving children, the parties agree that the best interests of their offspring are important.  The form that those best interests take and the best ways to ensure they are secured, however, can be contentious.  For divorcing couples with adult children or children nearing college age, resolving disputes about their support can be a tricky issue.

In Arizona, family courts lack jurisdiction to order continuing child support for most children once they reach the age of majority.  There are some exceptions outlined in A.R.S. § 25-320; for example, adult children who became disabled before the age of eighteen and are unable to support themselves can continue to receive child support payments.  Another exception provides continuing child support for children who reach the age of majority while attending high school.

Contract (Woodnick)If the parents wish to set aside college funds for an adult child in a divorce, however, they must do so by creating a contract outside of the court’s dissolution decree.  Careful drafting is of paramount importance here because family courts cannot enforce the agreement in supplementary post-dissolution proceedings after the child reaches the age of majority.  See Solomon v. Findley, 167 Ariz. 409 (1991).

When the parties agree that they want to settle college tuition by contract, what should the document say?  Every situation is a little different, of course, but some provisions must be made clear:

First, the parties must agree on the definition of “college” in the contract.  Should the agreement apply to vocational school tuition?  Community college? Should the support payments be made contingent on the adult child pursuing a specific type of degree, like a science degree?  Precision is needed to ensure that the language of the contract encompasses every possibility.  If the parties later disagree on the definitions of terms used in the agreement, lack of careful drafting could result in non-enforcement in a contract action.

Second, the parties must determine the nature and duration of support payments while the adult child attends college.  If the contract obligates one or both parties to pay support until the child receives a bachelor’s degree, for example, the support obligation could extend for much longer than the standard four years needed to complete most baccalaureate programs.  Setting a term limit or making the support contingent on the student taking a minimum number of credit hours and maintaining a minimum GPA could prevent abuse, but might also prematurely cancel support in the event of unforeseen circumstances creating a delay.

Furthermore, the nature of the support is an important consideration.  Will the parties pay for their child’s college tuition only, or will they set aside funds for living expenses, as well?  Do the parties expect their child to take summer courses or earn an income when school is not in session?  Again, the contract must be drafted to incorporate the parties’ intent at the time of the dissolution.  Four years is a long time, and a disgruntled parent might look for a way to discharge their obligation if the contract allows.

Graduation (Woodnick)Third, the parties must agree on the source of funds and how the funds will be saved and distributed to the adult child.  The parties may choose to obligate themselves to pay a percentage of their income into a savings account, purchase education bonds, or to simply pay a percentage of the child’s educational expenses once they enroll.  Creative solutions are fine – some parents may agree that one spouse will transfer GI Bill educational benefits or liquidate some specified assets for their adult child’s college expenses, for example – but they must be described with enough specificity that the contract can be interpreted and enforced years after it was written.

As with any contentious issue in a dissolution action, providing for a child’s future educational expenses is never a “boilerplate” matter.  Even though contracts relating to child support are not enforceable in family courts once the child reaches the age of eighteen, it is usually best to draft them during the dissolution process while all of the parties’ assets and obligations are already being examined.  It can be much more difficult to negotiate child support contracts after the dissolution action concludes.

Bankruptcy and Divorce

Often, a married couple’s decision to divorce comes when they are already considering filing for bankruptcy.  In other cases, bankruptcy is used by one divorcing party as a strategy to discharge some of the financial burdens of the dissolution action.  Because bankruptcy operates under federal law and dissolution is mostly governed by the laws of specific states, their intersection is rarely simple.

Alarm Clock (Woodnick)Here are some key considerations:

Timing

If you are considering both divorce and bankruptcy, timing is everything.  Under Chapter 11, § 362 of the United States Code, a petition to begin bankruptcy proceedings freezes attempts by creditors to assert claims against the debtor’s estate – a legal operation known as an “automatic stay.”  The stay only applies to a dissolution action when “such proceeding seeks to determine the division of property that is property of the [filer’s] estate,” but most dissolutions seek to do just that.  Although committee notes to the statute indicate that divorces which “bear no relation” to the bankruptcy should not be stayed, dissolution property division proceedings stop when bankruptcy begins.

If the bankruptcy filing occurs after dissolution, the parties also must consider the effects of the bankruptcy on asset division and debt allocation.  If the parties to the dissolution are both named on indebted accounts, such as vehicle loans or credit cards, one party’s bankruptcy may not discharge the debt for their ex-spouse.  Creditors could seek to recover some or all of the amount owed from the remaining debtor.

If the parties choose to file for bankruptcy before dissolution, their respective negotiating positions will be much clearer because they will know which debts were discharged.  Bankruptcy proceedings can be lengthy, however, and may result in unnecessary delay if the parties could otherwise have reached a favorable settlement.

Internal Components (Woodnick)Dischargeable (and non-dischargeable) debt

11 U.S.C. § 523 outlines exceptions to the discharge of debt which occurs when bankruptcy is completed.  Among those exceptions are fraudulently obtained moneys, some court judgments, and student loans.  Other well-known exceptions are “domestic support obligations,” including spousal maintenance and child support payments.

The fact that domestic obligations are not dischargeable may provide a false sense of security, however, because non-support components of the dissolution decree could still be discharged.  Negotiated property settlements, for example an equalization payment for the value of a business or a waste claim, may result in money that is due to the other party.  Because this obligation may or may not be classified as a “domestic support obligation,” it could potentially be discharged in the bankruptcy.  The bankruptcy court’s determination of whether an obligation in the dissolution decree is support-based is discretionary and requires specific findings by the judge.

A complex dissolution/bankruptcy scenario can be full of legal hazards to avoid and obstacles to overcome.  Attorneys for each legal action must be willing and able to work together in order to secure the most favorable outcomes for their clients after considering every option.  A family law attorney with inadequate knowledge of bankruptcy law could even run afoul of the statutes if they advise their client to assume additional debt during the dissolution with a planned bankruptcy in the future.

Spousal Maintenance in Arizona

One of the most complex and contested issues in a dissolution action is spousal maintenance.  Spousal maintenance, previously known as ‘alimony,’ is a court-ordered award of payments from the spouse with higher income to the other spouse, often for a period of months or years.

Couple (Woodnick)In Arizona, spousal maintenance awards are governed by statute, codified at A.R.S. § 25-319.  Spousal maintenance is a “two hurdle” question.  First, you have to qualify under subsection A.R.S. §25-319(A), and only if you qualify, do you look at the amount and duration of the maintenance award outlined in subsection A.R.S. § 25-391(B).

The court’s decision to award maintenance is related to the following four factors: (1) whether one spouse lacks sufficient property to provide for their needs, (2) whether one spouse is unable to be self-sufficient either through employment or because they are the custodian of a dependent child and should not be required to work, (3) one spouse has contributed (often through sacrificing their own prospects) to the education of the other, and (4) whether the marriage was of long duration or one spouse is of an age which precludes their ability to become self-sufficient.

A finding of one or all of these factors could suffice to award spousal maintenance, and the judge’s discretion is broad.  Many of the statute’s provisions, such as whether a spouse can be “self-sufficient” or is of an age which precludes their ability to gain “adequate” employment, rely heavily on the judge’s interpretation of the facts presented by the parties.  The judge must also consider what he or she knows about the world in order to determine the likelihood of self-sufficiency, such as whether a particular skill set is marketable, whether a particular field of employment is stable, etc.  Needless to say, the threshold matter of whether maintenance should be awarded largely depends on the type and strength of evidence presented by the parties to convince the judge to rule in their favor.

Once the judge determines that some maintenance is appropriate, they will turn to section B of the statute, which outlines some (but not all) of the factors used to set the duration and amount of the award.  The statute’s list of factors includes some of the same provisions as in section A, like age and duration of marriage, but also considers future earning capacity and expenses (including educational expenses for mutual children), the roles that the parties assumed during the marriage and how those roles affected their ability to enter the labor market, and even foul play and damages caused to one spouse by the other.

Again, these determinations are highly fact-sensitive and give the judge a great deal of flexibility in deciding the proper duration and amount of the spousal maintenance award.  Even the factors that the judge considers are not limited to the list in the statute: judges can consider any relevant (a legal term of art) information so long as they do not neglect applicable factors listed in the statute.

Dollar (Woodnick)Even after the spousal maintenance award is ordered, a change in the circumstances could result in modification under A.R.S. § 25-327.  This statute requires the party moving for modification to show that their circumstances have changed in a substantial and continuing way which makes the previous maintenance order no longer proper.  The statute specifically mentions the addition or termination of health insurance coverage as a potentially “modifiable” change in circumstances, but virtually any substantial and ongoing circumstance with an impact on the parties’ finances could be cause for modification.

If it sounds as though all of these provisions lack clear legal standards, then you probably read them correctly: the body of law surrounding spousal maintenance is constantly changing and very discretionary.  An effective attorney in this area is one who is creative and who understands the nuances of persuasion, as most spousal maintenance actions depend entirely on convincing the judge to adopt one party’s interpretation of a given set of facts.  The judge is not required to consider evidence which is not properly presented, and it can be difficult to modify a spousal maintenance order once it is made final.  Because an adverse spousal maintenance holding could result in thousands of dollars being improperly awarded, there is tremendous incentive to consult with an attorney – attempting to argue for or against a spousal maintenance award without the help of a qualified lawyer could have a lifetime impact on your income.

ASU’s New Beginnings Program Offers Help to Divorced Parents

Separation or divorce is a trying experience for any family, but the greatest impact is often felt in families with children.  Young children are especially vulnerable during times of change – a divorce can leave a child feeling frightened, neglected, and even worthy of blame for their parents’ dispute.  Children who witness a divorce may vent their emotions in unexpected – even dangerous – ways if they are unable to cope with the situation.  In some (thankfully uncommon) cases, the trauma of divorcing parents can cause lifelong problems for children, making them more likely to engage in high-risk behaviors and less able to handle emotional challenges.

Monkey Bars (woodnick)For parents, knowing how to talk to their children about their divorce – or whether to talk to their children about it at all – is no small concern.  There is no simple instruction book for parenting your children through tough times, and it may feel as though there is no way to help them.  If your child starts acting out or doing poorly in school, you may not realize that there are ways for you to help them.

Over the past few years, an Arizona State University applied research project has attempted to change the way parents think about divorce.  The program, dubbed “New Beginnings,” is an educational course for parents who are separating or divorcing.  The program focuses on giving parents the information and tools they need to talk to their children through the process of the divorce.

So far, the results have been tremendous, garnering national attention for the substantial long-term improvements to children’s overall well-being as a result of more effective parenting.  Research (and common sense) demonstrates that more parental involvement helps children adjust after a separation or divorce, and parents who employ more effective parenting strategies see even better results.  New Beginnings is designed to educate parents about these strategies and to prepare them for their children’s reactions to the separation as it moves forward.

New Beginnings is offered to mothers and fathers in Coconino, Maricopa, Pima, and Yuma Counties.  The program’s administrators encourage attorneys and other professionals to inform separating or divorcing parents about New Beginnings.  As interest grows, it seems likely that the program will expand, as well, meaning that parents in cities around Arizona, from the Phoenix-Mesa-Glendale Metropolitan Area to Tucson, Flagstaff, Show Low, Lake Havasu City, and beyond.

Walk (woodnick)The New Beginnings program is offered free of charge to qualified applicants, as it is funded in part by grants from the National Institutes of Health.  Parents are paid for participating in three phone interviews during the process, which allows researchers to gather information about the effectiveness of the strategies they teach so they can continue to improve the curriculum.  Free child care is even offered at the small-group workshops, making the program accessible to parents who may not be able to afford similar assistance elsewhere.

If you are thinking about separation or divorce, there is a plethora of issues to consider.  In the circuses of asset division, spousal maintenance, child support, parenting time, and custody, it is easy to get lost in the numbers and legal disputes and forget about the human impact that a dissolution action can have on your family.  Hire an attorney who can ease the burden of handling the legal issues, then take some time to guide your children through the process.  Your involvement is the best medicine for anything which might negatively impact your kids.

Domestic Violence and Custody

On December 1, 2012, then-Kansas City Chiefs linebacker Jovan Belcher murdered his girlfriend, 22-year-old Kasandra Perkins, in the couple’s home, then drove to the team’s practice facility and killed himself.  Now, Belcher’s mother and Perkins’ family are embroiled in a custody dispute over the couple’s four-month-old daughter, Zoey.

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Sadly, domestic violence is growing more common – perpetrators of domestic violence cause more than 100 deaths per year just in Arizona, 60-80% of which involve firearms.  According to an Arizona Coalition Against Domestic Violence (AZCADV) press release issued just after the Kansas City murder-suicide, domestic violence is “a pattern of behavior used by one partner to exert power and control over the other.”  The AZCADV correctly describes domestic violence as taking many forms, including physical, emotional, sexual, or financial abuse.  Domestic violence plays a significant role in family courts – results in dissolution actions and custody hearings can change dramatically if one of the parties is an abuser.

In Arizona, A.R.S. § 25-403.03 establishes a rebuttable presumption that joint legal decision-making (custody) of a child cannot be awarded if there is a history of significant domestic violence perpetrated by one of the parties.  Overcoming this presumption against joint legal decision making when a parent has displayed a history of abuse can be a tall order.

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As far as Zoey’s placement is concerned, Belcher’s history of domestic violence does not play such a direct role in any custody determination.  For young children who have experienced domestic violence or whose parents were killed, psychologists typically recommend stability.  Zoey had already spent significant time with Belcher’s mother before the murder, so leaving the child in her custody would make sense.

Perkins’ family recently took Zoey to Texas to attend her mother’s funeral, however, and several news outlets report that they have since refused to return her to Belcher’s mother’s care as they prepare to sue for custody.

Jurisdiction in Custody Hearings

When custody of a child comes under issue, whether in the context of a divorce, allegations of abuse, or some other dispute, determining which court should hear the matter is not always simple. This is complicated when the child’s parents live in different cities or states.

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Obviously, some of the more difficult cases arise when parents live in different countries – if one parent is deployed to a military base in Europe, for example.  The Hague Convention deals with international abductions and custody matters, but similar difficulties can arise between states within the United States.  Thankfully the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) helps to answer some of these questions.

The UCCJEA is a uniform act which has been adopted by Arizona, and was enacted “[…] to avoid jurisdictional competition and conflict, promote cooperation between states, discourage the use of the interstate system to continue custody controversies, deter abductions, avoid relitigation in different states, and facilitate enforcement of custody decrees between states.”  Welch-Doden v. Roberts, 202 Ariz. 201, 206 (App. 2002).  In Arizona, the UCCJEA’s principles are embodied in statute.

Under Arizona statutes, there are four ways to obtain initial custody jurisdiction.  If there is a “home state” in which the child lived within six months before the commencement of the proceeding, then that state likely becomes the proper state to hear the case and jurisdiction may not be too complicated.  A.R.S. § 25-1031(A)(1).  Specifically, the “home state” of a child – defined in A.R.S. §25-1002(7) – is the state where the child lived for at least six consecutive months immediately before the commencement of the proceeding, including temporary trips outside of the state (for vacations and things of that nature).

However, as discussed in Welch-Doden, the definition of “home state” in A.R.S. §25-1002(7) conflicts with the adopted UCCJEA provisions.  In Welch-Doden, a mother filed a dissolution of marriage action in Arizona.  She had been in Arizona with the parties’ minor child for four months prior to filing the divorce action.  Prior to this time, she and the minor child lived for six months in Oklahoma (where the father lived), three months prior to that mother and the minor child lived in Arizona, and seven months prior to that mother and the minor child lived in Oklahoma – a veritable spider web of residency and a jurisdictional nightmare.

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Pursuant to the strict definition of A.R.S. §25-1002(7), the mother argued that there was no “home state” because the minor child had not lived in any State for six consecutive months immediately prior to the filing for divorce.  The court adopted the father’s argument, however, that A.R.S. § 25-1031(A)(1) expanded the definition of “home state” to mean that if there was any State that could have been considered the “home state” within the six months prior to filing the custody action, that State would have initial custody jurisdiction.

The Welch-Doden court ultimately decided that Oklahoma held initial child custody jurisdiction because it had been the child’s home state within the six months before the petition was filed (but not the home state for the six- month period immediately prior to the filing).

If Welch-Doden teaches anything, it is that UCCJEA jurisdiction can be immensely complex – and the complexities don’t end with the issues above.  If you recently moved to (or from) Arizona, there may be jurisdictional conflicts which must be resolved before any further custody determinations take place.

Sex Offender Registration and Real Estate

In a November decision, the Arizona Court of Appeals held that sellers and agents have no duty to report the presence of nearby sex offenders when offering a home for sale – a decision with meaning unrelated to real estate.

The case, Lerner v. BMD Realty, Inc., began when the Lerners purchased a Scottsdale home and later learned that a registered sex offender lived next door.  The Lerners claimed that the previous owners told them that they wanted to live closer to friends when they were actually selling the home because of the close proximity of a registered sex offender.

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Under A.R.S. § 32-2156, no legal action can be taken against a seller for failure to disclose whether a death or felony has occurred in the home, whether anyone with a syndrome or disease not known to be communicable by common occupancy of real estate lived in the home, or whether the home is located in the vicinity of a sex offender.

The knee-jerk reaction to § 32-2156 may be surprise or outrage, particularly because the term “sex offender” conjures media-propagated images of morally bankrupt, sub-human individuals prowling the streets.  Why would the legislature immunize sellers for failing to disclose information which may be important to buyers?

The reasons, of course, are numerous.  Allowing lawsuits for failure to disclose whether a death or felony occurred in the home would force sellers to investigate events which may have happened years – or even decades – prior to their ownership.  Requiring sellers to disclose whether anyone with HIV or other non-communicable (by real estate) illnesses would invade the privacy of the home’s past residents and could result in a canceled sale for dubious reasons.

As for the provision for sex offenders in the vicinity, the legislature clearly wished to place the responsibility of finding that information on the buyer.  The registry is readily available to everyone, and buyers can choose how a positive result on the registry website affects their purchase decision.  Requiring sellers to disclose that information would likely chill real estate sales and adversely affect home prices, at minimum.

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Because “sex offenders” have been so thoroughly and collectively vilified, requiring sellers to disclose their proximity would probably result in many canceled sales without any further investigation.  If lawsuits against sellers were permitted for failure to disclose, courts would be forced into the difficult – if not impossible – task of tracking sex offenders’ locations at the time of sale to decide whether a seller discharged their obligation.

Perhaps more importantly, registered sex offender status does not automatically equate an individual to Law and Order: Special Victims Unit levels of dangerous criminal behavior.  The Arizona Sex Offender Information website contains a list of around 14,500 people who are legally required to register their presence in the state due to past convictions.  Offenses requiring registration include the relatively minor offense of indecent exposure all the way up to the major crimes of sexual assault or sex trafficking.  Even non-sexual crimes can result in mandatory registration if the judge determines that the offense was “sexually motivated.”

Although sex offender registration requirements are designed to inform the public and to promote safety, people who made mistakes, were convicted, served their sentence, and have remodeled themselves as law-abiding citizens have earned the right to go on living.  Requiring sellers to disclose nearby sex offenders could, in the worst-case scenario, result in vandalism, violence, or retaliation, to say nothing of the difficulty of trying to live a normal life amidst the paranoia of nosy neighbors.

Anyone who wishes to buy a home should be as well-informed about their purchase as possible, but the legislature understood the need to balance the obligations of the seller with the responsibilities of the buyer.  According to the Court of Appeals of Arizona, the Lerners should have used the 14-day inspection period to investigate the details of their purchase, including whether any registered sex offenders lived nearby – a simple search of the Arizona Sex Offender Information website, located at http://www.azdps.gov/Services/Sex_Offender/, would likely have revealed the pertinent information.

This holding is consistent with the so-called “buyer beware” doctrine which permeates commercial and real estate transactions in the U.S.  Because sex offender registries are readily available to everyone, it is up to the buyer to check them before buying a home.

All is not lost for the Lerners, however, because the court left open the possibility that they could recover against the sellers for fraud if they can prove that they lied about their reasons for moving.

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In any case, the Lerner v. BMD Realty, Inc. decision should give pause to anyone involved in a real estate transaction.  If you are buying or selling a home, it is important to understand your duties and obligations and how they might affect negotiations.

If you are selling a home, it may be advantageous to disclose certain facts even if you are not legally obligated to do so – if your well-liked 19-year-old neighbor is a registered sex offender because he had consensual sex with his 17-year-old girlfriend, explaining the situation to a prospective buyer will probably result in a more favorable outcome than attempting to avoid the subject.

If you are buying, on the other hand, then understanding the registry and what a positive search result means could prevent you from placing your family in danger.  Conversely, carefully examining the registry results and making an informed decision might prevent you from rejecting your dream home because of unreasonable fears.

Dueling Appraisals in a Divorce

The process of real estate valuation in the divorce setting takes on two common forms: (1) the parties agree to hire a neutral appraiser whose evaluation of the property becomes the agreed upon figure, or (2) the parties hire their own appraisers and dispute the details of two dueling appraisals.

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Common pitfalls associated with the second scenario are easy to imagine: each party disputes the opposing party’s appraisal and a judge must determine which is more accurate.  Sometimes, the judge declines to use either appraisal and orders a neutral appraisal to settle the dispute. Even under the first scenario there can be dispute if the valuation does not come in just the way one side wanted.

Many appraisers charge greater fees when appraising for the purpose of a divorce – the possibility of litigation and the inherent complexity of determining the progression of real estate value over the course of a marriage makes the process much more arduous than a standard appraisal.  Recent upgrades – remodeled rooms, furniture, or appliances – do not often return their retail value when the home is sold, and the parties may dispute over who should keep them if they are removed.

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With the real estate market rebounding, many divorcees are finding that their marital residence or investment property is “worth the fight.”

For more about the tribulations of real estate appraisals during a divorce, read the Wall Street Journal’s recent article, entitled “Appraisers in Splitsville,” at the following website: http://online.wsj.com/article/SB10001424127887324851704578133200609815808.html