Money Matters! And Even More So in A Slow Economy.

How people managed their money during the marriage often effects their respective views on how they should resolve their economic differences during the divorce.  If one party controlled the money during the marriage, then he or she is likely to want to control its disposition in the divorce. 

For example, if a Husband views himself as the bread winner during the marriage and views Wife as “only” the custodian of the children or the “keeper of the house” (and, therefore, undeserving), he may want to retain control of the monies in the divorce and view the Wife as an unentitled or undeserving partner. 

Another scenario is where a Wife who had substantial monies from an inheritance or gifts from her parents and who supported her Husband and “their” lifestyle during the marriage – why, in a divorce, should she share any of her monies with “HIM”. 

It is always about the money! 

If not, it’s about control. And, control often involves “who holds the purse strings”. 

It is possible that our economy is headed into a recession.  No one knows how severe it may be.  However, divorce lawyers know that when economic times get bad, it is much more difficult to resolve economic issues. Why?  Because, while it always is more expensive to support two households after a divorce, in economically depressed times there are even less resources available to smooth out the economic fissures in a marriage where money was plentiful and covered over the cracks in the relationship. 

Further, this may be compounded when there is a business involved, since the valuation of the business will be depressed in a economy like the one we are experiencingnow. 

Who gets what and how much is central stage.  Money does matter.

THINKING ABOUT METAL

Historically, we have often been asked about the valuation of jewelry and coins as part of the equitable distribution process. This has never been a very interesting topic over the years as, in most cases, the mark-up on these personal effects is so high that there is often very little value left after the appraiser finishes charging his or her fee. In particular, with the average $500-$1000 piece of jewelry, it is not uncommon for the mark-up to be 10x the wholesale price of the piece involved. This is reflected in a classic dilemma. Take grandpa’s pocket watch to the appraiser for an insurance appraisal and it may be valued at $1,500. Ask the same jeweler for a quote to buy it, and the number could be one-third or less of the insurance value.

This general conclusion is shifting beneath us and merits some further consideration because of recent trends in commodity prices. Gold as a commodity has historically traded in the $300-$400 per ounce range. It remained in that window from January, 2000 pretty much through July, 2004. Since that date the rise in the price of the commodity started upward marching to $600 an ounce by July, 2006. For the next year, it traded in the $600-700 range. But since that date it has taken off to where it trades at more than $1,000 per ounce as this article is written.

Silver and platinum have risen even more precipitously. Silver was the stepchild of the commodities business since the 1980s when the Hunt Family in Texas tried to corner the market and failed. It remained in the $6.00 per ounce range for almost 20 years. But January, 2004 marked a turning point. Silver shifted into a $6.00-8.00 commodity. And two years later in January, 2006, it began a long steep rise that takes it to its current value of $20.42 (3/14/08). Platinum worked in a $400-600 an ounce range from the early 1990s through 2002. But with the arrival to 2003 it rose very steadily to $1300 an ounce by the third quarter of 2007. Since that time, the metal has rocketed off the chart to $2,150 today. That would yield an annual return of 160% if sustained.

So what does this mean to those of us who have granny’s collection of silver service for 12 or $100 worth of pre-1964 coins. It means that these objects may have real value even without considering the artistic consideration of whether the pattern is Williamsburg Shell or something else. If you bought a sterling golf tankard for $100 ten years ago, its smelting value might have been $40 (8oz x $5.00 an ounce). Today that same tankard is worth $152 even if the scrap dealer just throws it in the smelter to melt and sell. As noted above, these kinds of goods have high mark-ups and usually trade at a fraction of retail. But because the metal used is now so valuable, it may be very worthwhile to consider making the investment in an appraisal.

Bear in mind a couple of details that make all the difference. Gold found in retail goods in the US it typically 10, 14, or 18 carat. Gold is usually marked with its composition. This means it is 42%-75% gold and otherwise a composite of other hard metals. Sterling silver is 92.5% raw material so it is typically close to the commodity price. But, one needs to know the difference between silver and silverplate, as the latter is really another metal (typically copper or brass) plated with a microscopic coating of silver. So, unless the piece has hallmarks or otherwise has the word “sterling” embossed in the metal, chances are you are holding a piece of copper or brass, dressed up to look like sterling. It could still be valuable but that would be as art and not metal.

WE DECIDED TO DIVORCE; DO I WANT THE HOUSE?

Divorce results not only in severing a personal relationship, but also terminates an economic one. The division of marital property, or “equitable distribution,” is part of the divorce process in Pennsylvania and results in the distribution of all marital property acquired by one or both parties during the marriage. It is often at that time that a party is first faced with the dilemma of establishing a priority of assets, because they must determine which they wish to take away from the marriage. The economic realities then set in. The future may be wide open, but the party must close the door on tough economic decisions, such as: “Should I try to keep the marital residence, or do I want the pension? Do I want the 401K, or is the vacation home better?” Of course, both spouses may want the same assets and that competition may have to be resolved in a courtroom, but consideration of sound economics before entering that fray is clearly needed.

The dramatic climb in property values over recent years often made it an appealing option to trade the liquid accounts and assets for the investment, both monetary and emotional, represented by the family home. That, however, may now be changing drastically, and the decision may be much tougher than before.

The November 2007 issue of Fortune magazine reflects that home prices in most markets will “fall by double digits over the next five years.” That is a new development in America that may not have been seen since the Great Depression. That decline in value is daunting, especially when compared to the slow, but steady, growth achievable in a conservatively invested and tax-advantaged 401K or IRA. 

A party must now give even more careful thought to short and long-term goals and objectives.  Examples may include:

  • Is the desire to keep the home based on (i) personal shelter, comfort, and pleasure, (ii) immediate rental income, or (iii) long-term investment potential? 
  • What is the availability and price of alternative housing? 
  • Will there be capital gains and taxes, and what impact will the basis have? 
  • If there are minor children, what effect does the home location have on the custody scheme? 
  • How does the cost of remaining in a prime school district compare to private school options? 
  • Is the cost to maintain the home offset sufficiently by the tax benefits, especially when compared with renting a comparable property? 
  • Is a comparable property still needed? 
  • Is cash immediately required to cover liabilities and, if so, would refinancing be more effective than withdrawal penalties or interest associated with getting money out of a tax-advantaged retirement vehicle or from life insurance cash values. 
  • What is the effect of the new, post-divorce tax status going to be on the whole decision-making process, and will the divorce, support, and custody determinations create an entirely new cash flow situation than existed before?

Identifying and addressing all of these issues and finding the answers to these questions as they apply to a given person’s circumstances will lead to wise choices for asset allocation. Planning and realistic appraisal of the economic and legal issues will lead to the best possible outcome from a financial point of view. 

And The Client Asks: Do I Have To Disclose All Of My Assets?

We often get calls regarding "divorce planning", a/k/a "How do I hide assets?"

First, plainly and clearly:  You can't hide assets for a myriad of reasons.  

If the misrepresentation takes place in a litigation setting, the failure to disclose assets brings to bear many different consequences, ranging from incurring the ire of the Court to potentially (but not usually) perjury charges.

In negotiating a pre-nuptial agreement or a property settlement agreement, Pennsylvania law requires parties to make full and fair disclosure of their assets. Stoner v. Stoner, 819 A.2d 529 (Pa. 2003); Simeone v. Simeone, 581 A.2d 162 (Pa. 1990). 

So what does that mean?  "Full and fair disclosure" is case specific, but each party to a marital agreement must disclose in full his or her respective assets to enable the other party to make an “intelligent decision” concerning the rights that they will give up under the terms of the agreement. Nitkiewicz v. Nitkiewicz, 535 A.2d 664, 667 (Pa. Super. 1988); Paroly v. Paroly, 876 A.2d 1061, 1066 (Pa. Super. 2005). 

As a practice tip, the courts likely will not invalidate a pre-nuptial agreement where you have overstated your assets, so err on the side of caution when disclosing your assets for a pre-nuptial agreement. 

The consequences for failing to disclose your assets in full?  Worst case -- costly litigation, time, damages (compensatory and punitive), and counsel fees (your own and, maybe, your spouse’s).  So, to avoid extensive litigation in the future, make sure that you fully disclose your assets in court and/or in the context of the execution of a marital contract. 

Inheritances: Can I Keep My Money??

We are often asked by clients how to protect an inheritance received during the marriage in the event of a divorce?  In Pennsylvania, marital assets typically include any asset received by either spouse during the course of the marriage.  Inheritances are one exception to this general rule.

If a spouse receives an inheritance during the marriage, the inheritance is not automatically marital property.  However, any increase in value of the inheritance between the date of receipt of the inheritance and the date of separation would be marital property. 

There are a few ways that you can protect your inheritance from a divorce.

First, when you receive an inheritance, you should place it in a separate account or asset in your name only.  Make sure that you keep documentation to show where the money came from to open the account or purchase the asset, and keep the first statement for the account or proof of purchase price for the asset to prove that you did not use any marital monies for the asset.  By keeping the money in your name alone, you protect it from being divided in a divorce.  If you put the inheritance into a joint asset such as a house boat, or bank account, you risk the inheritance being treated as a gift from you to the marriage.

Another option is to ask an attorney to draft a postnuptial agreement for you and your spouse to sign. This is similar to a prenuptial agreement, except that it would signed after you are already married.  If done properly, the agreement will make sure that any increase in value of the inheritance is protected as well as the underlying inheritance.

Protecting your inheritance requires proper advance planning.  If you wait until a marriage sours, you may be too late to protect your inheritance from the divorce action.

Social Security Set-Offs

In Rimel v. Rimel, 913 A.2d 289 (Pa. Super. 2006), the Superior Court addressed an issue of first impression: whether husband was entitled to a social security set-off against the value of his Federal CSRS pension where he had worked not only for the federal government, but also in jobs through which he did contribute to the social security system.

The Court decided that Husband was entitled to such a set-off, but remanded the matter for additional testimony, as the facts had not been developed which would allow for the determination of what amounted to be a "partial set-off".

The Court cited the following cases:

Cornbleth, 580 A.2d 369 (Pa. Super. 1990)

Twilla, 664 A.2d 1020 (Pa. Super. 1995)

The Court distinguished the following cases:

Elhajj, 605 A.2d 1268 (Pa. Super. 1992)

McClain, 693 A.2d 1355 (Pa. Super. 1997)