AAML NJ Blog

In this video interview by Family Law Magazine, Sharon L. Klein, Wilmington Trust’s President of Family Wealth, Eastern U.S Region and Head of Wilmington’s National Matrimonial/Divorce Advisory Practice, and Madeline Marzano-Lesnevich, past president of the American Academy of Matrimonial Lawyers, reveal their top tips and traps for negotiating premarital agreements.

Link to interview: https://familylawyermagazine.com/articles/watch-top-tips-for-negotiating-premarital-agreements/

By Madeline Marzano-Lesnevich, Esq. 

Warmer weather and longer days are here— we’re officially in summertime— but let’s face it: this is weird. Coping with the ongoing novel coronavirus, and dealing with phased re-openings as the pandemic persists throughout summer, will feel different because it is different. And if you’re co-parenting, it may even feel more difficult than co-parenting through quarantine, because our— and our kids’— natural desires are to go out and enjoy summertime fun in the sun!

And you still can. But there are a few things you and your co-parents should talk about, and do, before you all leave the house and enjoy the season.

1. Prioritize health: Agree with your co-parent that everyone’s health and safety is paramount. If that means strict quarantining for 14 days before or after taking a trip or expanding your circle (or “bubble,” in our new pandemic language), so be it. If it means patiently explaining to a child that they have to wear a mask when they go to a park with a friend, it’s worth it. Safety first.

2. Consult with your co-parent: With summer plans changing (okay, we’re not going on our usual getaway this year) or outright canceled (goodbye, summer camp! Maybe, to the beach?) it’s more imperative than ever to consult and talk honestly. It means being flexible and adaptive in giving your children— and your co-parent— a chance to enjoy a bit of my favorite season, and everyone a chance to make a summertime memory during the pandemic.

3. Be creative: A day at the beach too crowded? What about a wading pool in the backyard, complete with all the make-your-own popsicles you can eat? You can even set up a lawn chair with amenities and escort your child to their reserved spot. An afternoon movie matinee at the local cinema out of the question? Screen a classic summer blockbuster and set up a snack stand, with admission tickets and hand-drawn movie posters. Family trip to the ice cream place after dinner out of the question? Set up a make your own sundae bar or, if you really want to go for it, make your own mason jar ice cream. Use your imagination this summer!

4. Make it fun-damental: Just as it isn’t a ‘normal’ summer, it wasn’t a ‘normal’ school year. Most schools transitioned to remote learning at some point, and pretty much any teacher or parent will tell you something was lost in translation in Google Classroom, or over the transom of the Chromebook. Therefore, encouraging children to pursue a vigorous summer reading list, or keep a journal of their pandemic summer, or watch online educational videos relating to science, math, English and history could be a positive way to continue learning throughout the summer— especially if you and your co-parent can agree on how to jointly promote learning. The same way adults working from home many not realize what day it is, the lines between summer and school are going to be blurred this year. 

5. Stay cool— and stay safe: Even without the ongoing threat of the novel coronavirus, we know, due to climate change, it’s going to be another hot summer. The temptation may be to flee to the beach or town pool immediately, but even if these facilities are open, it’s important to use them wisely. Wear a mask. Consult with your co-parent so that everyone’s following the same recommended guidelines. Stay 6 to 10 feet apart from other families on a beach. And if you don’t feel comfortable cooling off in a public place, see if you can make your home a cool one. That doesn’t mean you have to rush to add an expensive pool; an investment in a long, new hose, plenty of water balloons on hand, or a reasonably priced slip-and-slide might just do the trick.

6. Give everyone a break: Just like a normal summer family trip or experience, there’s going to be meltdowns. Rainy days when no one wants to do anything but sulk. Tears over something not being the way it used to be— and not just from the kids. And that’s okay. It’s okay to be not okay this summer, and to try and simply get through it— and to try to enjoy what summer moments you all can.

7. Remember: how we act toward each other, during this pandemic, will set a tone for after the pandemic. We hope you have a responsible, safe, happy— and healthy— summer!

A version of this article already appeared on my blog, https://lmllawyers.com/category/lets-talk-about-divorce/

Madeline Marzano-Lesnevich, Esq. is the co-Chair of the Family Law Department at the New Jersey-based law firm of Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC (www.lmllawyers.com). Madeline is a Diplomate of the American College of Family Trial Lawyers. She is a prior President of the national American Academy of Matrimonial Lawyers, as well as past President of its New Jersey Chapter, and past Chair of the Family Law Section of the New Jersey State Bar Association.

By Jeralyn Lawrence, Esq. Managing Member and Founder of Lawrence Law

The main goal of divorce is to reach an agreement with your spouse. The terms of the agreement are memorialized, in writing, in a Marital Settlement agreement. This agreement is also known as a Property Settlement Agreement. A very high percentage, meaning almost all, divorce cases settle. In other words, a very small percentage of cases go to trial. At trial, a Judge will decide the issues relative to the divorce.

There are two people that control how long a divorce takes and how much it costs. Those two people are the couple getting the divorce. As soon as they are able to agree upon terms, their case will be settled and a divorce decree obtained. To be able to reach an agreement, both parties will need to be able to communicate, cooperate and compromise. Any agreement reached will contain many compromises by the parties. As such, they will each have had to give up on issues to gain an advantage on other issues. It is important that both parties make concessions, not just one party. In the end, both parties must feel that they are reaching a durable and sustainable agreement. And that, the agreement meets both of their needs.

Transparency is a Requirement

It is important for both parties to feel fairly treated through the divorce process. This starts with full and fair disclosure of all financial records. Both parties need to be open and fully transparent about their assets and debts. The value of all assets must be ascertained to get a complete financial picture. This is common with business owners. A value of the business must be ascertained, as well as an accurate understanding of cash flow, before the settlement of a case.

While a divorce is painful and emotional, there is no substitute for preparation. Preparation will allow you to negotiate and to reach an acceptable agreement. When settlement is impeded by the emotions of one of the parties, it may be important to bring a mental health expert into the process. This expert can address and strengthen the client throughout the process. Once the divorce is over, to goal is for the client to be able to embrace the next chapter in his or her life with a renewed sense of hope. And, a restored sense of self and security.

As a lawyer, it is my job to lead the client to a better place. The goal of a divorce is to reach an agreement while positioning the client for long-term success. In my view, long-term success includes financial and mental health.

Original post: https://lawlawfirm.com/the-goal-of-divorce/

Sharon Klein, president of Wilmington Trust Family Wealth, Eastern U.S. region, discusses the urgency for estate planning while divorce is pending, particularly in light of COVID-19, with Dan Couvrette, publisher of Family Lawyer Magazine. Now is the time to confirm designated heirs are up-to-date and that the right people are named to make important financial and health care decisions on documents like Health Care Proxies and Powers of Attorney.

Click on the link below to watch. 

https://www.divorcemag.com/articles/watch-estate-planning-and-covid-19

By Carolyn N. Daly, Esq. of Daly & Associates LLC

With the onset of COVID-19 and Governor Murphy’s stay-at-home order, the court system has had to implement a number of procedures and protocols in order to allow courts to continue functioning while we all continue to social distance.  Although jury trials and other criminal proceedings are suspended, most other dockets are continuing.  The court system has indicated that, come May 10^th, they have enough confidence in their online operations to largely proceed “as normal” (albeit a new normal), with more and more proceedings happening every day.  According to Morris County, they are conducting an astounding 420 virtual proceedings each week, or 60 per day.

However, with these virtual proceedings come questions on the ability of the judiciary and the attorneys to perform the same functions they would be performing in the courtroom.  How does an attorney deal with scheduling meetings while also needing to parent young children?  How do litigants, particularly in divorce matters, attempt to work out parenting time schedules and other issues related to the children when the children may be there, listening?  It’s a difficult situation that everyone has had to adapt to, but there’s no denying that some proceedings are better able to adapt than others.

Take trials, for instance.  While jury trials are postponed indefinitely, other types of trials and testimonial hearings are moving forward.  The judiciary has made clear that divorce trials, custody hearings, domestic violence trials, and more should proceed forward.  In fact, if the court is ready to hear your matter, they will hear the matter by Zoom, or other video teleconferencing platforms whether you consent to proceeding in this matter or not.

When it comes to testimonial proceedings, this can be particularly concerning.  In a courtroom, a judge can see all the parties – the witness, the litigants, the attorneys – and make assessments in real time.  He or She can assess credibility not just from the witness testifying, but also from the parties, when they are sitting at counsel table and listening to the testimony, and perhaps even from the attorneys themselves.  But on a video call?  A judge can often only see a portion of any individual on a call and they may not be looking at the camera or in front of the camera all the time.  In court, the judge knows exactly what a witness has in front of him.  On a zoom call, the court has no idea what the witness has in front of them or who may be in the room with them helping them, outside of the view of the camera.  It raises some sticky questions, and in some cases, some serious due process concerns.

In what can now be viewed as an ironic coincidence, the court actually set the table for allowing virtual hearings in a decision published in January, just before entry of the stay-at-home order, in Pathri v. Kakarlamath, Docket No. A-4657-18T1 (you can read the decision for free here).

In the Pathri case, the parties filed for divorce in 2018, and the matter was scheduled for trial in June of 2019.  (Attorneys and litigants who are currently going through divorce proceedings will likely express shock at the speed of this trial as most divorce cases take significantly longer than one year to proceed to trial.)  Mr. Pathri, the Plaintiff, moved back to India after filing for divorce.  One week before the trial, he informed the court he could not get a Visa to fly back to the United States, and asked to instead appear and testify from India via video conferencing.

The Judge denied Plaintiff’s motion to testify from India.  In doing so, the Judge relied heavily on a case from 1988 entitled Aqua Marine Products, Inc., v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988).  In Aqua Marine, the court ruled that telephonic testimony could only be taken in limited circumstances where (1) the party testifying telephonically could somehow verify that he or she was who he or she claimed to be, and (2) there was some exigency, or emergency, that required testimony by telephone, unless the other party consented.  The court ruled there was no exigency, and thus denied Plaintiff’s motion in Pathri.

Plaintiff appealed, and the court reversed.  Noting first that Aqua Marine came from a time when video conferencing was not only unavailable, but largely unfeasible, the court set down factors for a court to consider when determining whether to allow testimony via video or telephone, although the court clearly expressed a strong preference for video technology:

• The witness’ importance to the proceeding;
• The severity of the factual dispute to which the witness will testify;
• Whether the factfinder is a judge or a jury;
• The cost of requiring the witness’ physical appearance in court versus the cost of transmitting the witness’ testimony in some other form;
• The delay caused by insisting on the witness’ physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;
• Whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; and
• The witness’ difficulty in appearing in person.

The court then walked through each factor, providing guidance to judges of the importance of each factor and considerations a judge should take into account when evaluating each factor.  Left untouched, of course, is the continued requirement of authentication; the court still must confirm that the person testifying is in fact who he or she says he or she is.

This decision and the factors set forth therein can assist us in determining whether, in fact, we can proceed via Zoom or other video conferencing platforms, even after this pandemic has ended.  There is no question that there will be significant delays caused by insisting on the witness’ physical appearance in court (as of now, we don’t even know when courts will reopen for in person appearances) versus the speed and convenience of allowing the transmission by video or telephone.  Many cases have been impacted and delayed because of the unavailability of a witness or party.  This decision favors continuing proceedings, unless there are serious issues with respect to the other factors.  For example, in domestic violence cases, attorneys (particularly for Defendants) are already honing arguments that their client’s rights under confrontation clause to a full and complete cross examination is hampered by having all parties proceed via video.  Therefore, consideration should be given, if the Defendant wants, to simply continue the TRO until trials can occur in person as the victim is not negatively impacted by the delay since the restraints remain in place.

The bottom line is that it is clear parties will be required, for the foreseeable future, to conduct their conferences, trials, and other hearings via video conferencing or telephone.  Parties and attorneys are going to have to adapt to this new normal and work together to ensure their matters proceed in a manner that ensures the best outcome for them.

By: Madeline Marzano-Lesnevich Esq. 

How to Protect Your Child During a Pandemic Situation

“Mommy, Daddy says you are overreacting, and I can go with him to Aunt Joanie’s wedding reception in two weeks— it’s only a short plane ride.”

“Daddy, Mommy says I don’t have to keep washing my hands that much. And she says you are wrong about the monkey bars at the playground— they’re clean enough.”

“Mommy… Daddy… is Disneyland really closed?”  

Co-parenting is not a myth. It is not just an idea. It is not just a goal. Co-parenting is real, and you need to be able to do it, no matter how you feel about your spouse/partner or former spouse/partner. You need to avoid putting your child in the middle, and, most importantly, you must decide together how you are going to handle certain situations—including our current one, a pandemic.

How can you handle protecting your child and his/her family when that family, and that child, is split between two homes?

The first thing you need to do is talk to your co-parent. You need to agree on whether you both recognize the severity of a situation, and, if you don’t agree, you must decide that exercising caution is less detrimental to your child than not exercising caution. If you both agree on the severity of a situation but disagree on how to handle it, avail yourselves of the information and resources of individuals or institutions with more knowledge of the situation than you. If that information is overwhelming or even contradictory, call a trusted advisor—your child’s pediatrician, a psychologist, a family relative to you both trust.

You can both decide to follow the same rules in both houses— not forever, but for the time when special rules are necessary. If you are able to purchase items that will help keep your environment, and your child, safe, now is the time to share with your co-parent. When many others around your child may be expressing worry or even panic, you can both decide to have a united calm front. You can talk to each other about how to talk to your child and how to soothe, comfort and assure your child. If your child expresses fear or questions their health or yours, share those concerns with your co-parent.

Bergen County, NJ schools are being closed indefinitely. This obviously creates a burden for employed parents, but it also creates a further opportunity to co-parent meaningfully and successfully. Whether you currently enjoy a shared physical custody arrangement or a division of parenting time whereby one parent enjoys more or less than 50% of the time with your child, talk to your co-parent about sharing this unexpected and unique time with your child. Which of you has a more flexible work schedule?  Which of you has an at-home spouse or partner? Which of you has other children whose school is also closed? Which of you is better equipped to assist with the on-line schooling which many districts are implementing? Which of you can work remotely?

You both only want what is best for your child, and now is the time to recognize and acknowledge that in each other. This is not your divorce. This is co-parenting.

Discuss all this with your co-parent. Do not be afraid to involve your co-parent’s current spouse or partner in the discussion. These are special times which call for special action. Your child deserves no less.

What a child needs are consistency and love, and you each can give that to your child— even now, in a time of uncertainty and caution.

***

You can contact author Madeline Marzano-Lesnevich, Esq. at 201.488.1161. Post originally posted at: https://lmllawyers.com/co-parenting-in-the-time-of-covid-19/

By Sharon L. Klein, Family Wealth Strategist, Trusts & Estates Attorney

The dissolution of marriage is one of the most stressful and difficult experiences your clients may face. The COVID-19 pandemic has made the already challenging and uncertain journey of divorce more complicated for families and their advisors. With unpredictable court closings, hearing delays, the impact on employment and spousal support, and custody arrangements that involve child movement between households—now more than ever, trusted guidance and collaboration are key.

As your clients transition from one chapter of life to the next, what follows is our pick of the top 10 financial considerations to address with them.  For seamless and integrated advice, your client’s financial advisory team should work collaboratively with you and your client’s other advisors, and have the breadth and depth to provide a full spectrum of services.

Here Are 10 Important Financial Considerations in Divorce

1.       Have your clients established their own individual banking accounts for everyday financial needs and reviewed their new balance sheet?

Clients likely will need to open accounts in individual names and develop a list of revised assets and liabilities.

2.      Do your clients need financing that is customized for their unique situation?

Custom credit can provide your clients with a reliable source of funding for unforeseen expenses, real estate purchases, and business investments. They will need an experienced professional to evaluate their options and provide lending based on their assets—including specialty or illiquid holdings. Solutions to consider include:

• Marketable securities-backed lines of credit, including restricted and concentrated stock, which may be a valuable option to consider for preserving an underlying portfolio, instead of selling at a time of crisis
• Bridge financing to help with a significant purchase
• Specialized asset-backed loans secured by partnership interests, fine art, yachts, and aircraft
• Residential and investment real estate financing, including lines of credit

3.       Have your clients projected how their settlement will sustain their lifestyle?

An experienced financial advisory team should offer a comprehensive financial plan analyzing the changes in your clients’ cash flows from assets received, alimony, changes in expenses, and other cash flows expected after the dissolution of marriage. Having detailed financial projections may be particularly important given the pandemic’s dramatic impact on market volatility. By providing a comprehensive overview of the following factors, an advisor can help your clients balance their projected expenses while maintaining the lifestyle they seek:

• Cash flow planning for income and expenses

• Alimony/child support

• Asset sustainability study and portfolio risk analysis

• Tax situation review and appropriate planning

4.       Have your clients reviewed their estate planning documents to make necessary changes?

An experienced financial advisory team can help your clients review all their important estate planning documents and feel confident they are providing for their chosen heirs, updating beneficiary designations, and naming new designees for healthcare and power of attorney documents. With court closings and potentially long delays in finalizing divorce, the need to have documents updated to reflect your clients’ intent is increasingly important. Some documents can be changed while divorce is pending, others must wait until the divorce decree is issued. Documents to consider include:

• Will and trusts (usually can be changed while divorce is pending)

• Power of attorney and healthcare directive (usually can be changed while divorce is pending)

• Retirement accounts and plans (usually cannot be changed while divorce is pending)

• Jointly named real estate and financial accounts (usually cannot be changed while divorce is pending)

• Authorizations to access digital accounts, including financial accounts, email accounts, social media accounts, etc. (usually can be changed while divorce is pending)

5.      Do your clients have a fiduciary they can trust to oversee their trusts and assets?

When trusts are utilized to protect settlement payments, it is important to select a trustee who will be your clients’ fiduciary: A trustee whose first and foremost responsibility is to protect the best interests of your clients and their family.
6.        Is there a business valuation involved in your clients’ settlement agreement?

The preparation of a business valuation is a lengthy and expensive process. As you well know, valuation reports can be very lengthy and difficult for even seasoned professionals to understand. The coronavirus pandemic may have substantially impacted business values. For any business that has been appraised as part of the settlement process, you will want to confirm that your clients’ financial advisors can review the appraiser’s valuation report and provide insights that may answer questions such as:

• Is the appraiser a qualified professional with experience and valuation credentials?

• Is the appraiser’s financial analysis of the company thorough and explained?

• Are the methods used appropriate and the reasons for their selection discussed?

• Is the value conclusion reasonable, based on the factors presented in the report?

7.       Do your clients have the tools to set their short- and long-term investment strategies?

If your clients are receiving a settlement, particularly through times of crisis, they will want to be certain that their short- and long-term needs are met through the creation of a customized investment portfolio. It will be important to have a dedicated financial advisory team that can tailor a portfolio based on each client’s specific parameters, including liquidity and spending needs, time horizon, risk tolerance, cost sensitivity, tax efficiency and other factors.

8.       Do your clients need to update their insurance coverage?

The coronavirus pandemic, with its tragic attendant death toll, has focused people’s attention on mortality. Now more than ever, you will want to ensure that your clients’ settlement entitlements are secured with appropriate life insurance, or potentially probe the value as a marital asset. Insurance review is very important to be certain clients have the appropriate coverage, have named the correct beneficiaries, and that the premiums are being paid. Health, life, disability, property & casualty, and long-term care insurance should all be reviewed to identify what actions might be recommended, including revising policy ownership and beneficiary designations, and understanding who has responsibility for premium payments.

9.       Are your clients’ children’s college expenses covered?

An experienced advisory team can establish projections and analytics helpful to the settlement process by delineating the future costs of college based on the ages of the children and the potential colleges under consideration. This data can be coupled with merit-based aid scholarship strategies and other financial aid analytics. Often, trusts can be designed and created specifically (or in concert with other goals) to fund education.

10.   Are your clients aware of the charitable techniques available to them?

A financial advisor should review any existing private foundations and charitable trusts to be certain they are still in line with your clients’ goals and wishes. The advisor should also review potential charitable techniques that could be utilized to support philanthropy and minimize taxes in the settlement process.

Close

Wilmington Trust’s core objective, dating back over a century, is to serve families. We can help parse through complexity and manage, grow and protect wealth. In offering a broad spectrum of wealth advisory services, delivered through a dedicated team, our guiding philosophy is clear: It is our clients’ best interests that drives us. We can help you navigate the challenges you face today and prepare you for a new beginning, and a successful future.

To learn more: https://www.wilmingtontrust.com/divorce/

Sharon L. Klein is president of Family Wealth, Eastern U.S. Region, for Wilmington Trust. She is responsible for coordinating the delivery of all Wealth Management services by teams of professionals, including planning, trust, investment management, family governance and education, family office, and private banking services, to high-net-worth clients in the Eastern United States. Sharon also heads Wilmington Trust’s National Matrimonial Advisory Solutions Group, a team of Wilmington’s professionals from across disciplines who collaborate with family law practitioners in offering a comprehensive set of services for those considering or maneuvering through divorce.

Beginning her career as a trusts & estates attorney, Sharon has over 25 years’ experience in the wealth advisory arena and is a nationally recognized speaker and author. She is a Fellow of the American College of Trust and Estate Counsel. She chairs the Domestic Relations Committee of Trusts & Estates magazine, where she sits on the Board, and is a member of the New York City Bar Association’s Matrimonial Committee.

This article is for general information only and is not intended as an offer or solicitation for the sale of any financial product, service or other professional advice.  Wilmington Trust does not provide tax, legal or accounting advice. Professional advice always requires consideration of individual circumstances. Wilmington Trust is a registered service mark used in connection with various fiduciary and non-fiduciary services offered by certain subsidiaries of M&T Bank Corporation. Wilmington Trust traces it roots to the founding of Wilmington Trust Company in 1903.

© 2020 M&T Bank Corporation and its subsidiaries. All Rights Reserved.

By: Madeline Marzano-Lesnevich, Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC

Although most of the States have set orders, guidelines or recommendations on where we may go, how far apart we should stand whether our place of business is open or closed, where and how we can travel—there are no set rules for how to handle ourselves in this pandemic. But in the context of family law, and the reality of where you might find yourself, please consider: 

You may have started divorce proceedings, or told your spouse/partner, that you wish a divorce, but you may be still residing in the same house. Many divorcing couples are compelled to do this for financial reasons. Given New Jersey Governor Phil Murphy’s recent Executive Order, there are not many places one may go to in order to “escape” from home or from one’s spouse/partner.

Be mindful that your housemate may not wish to be quarantined with you any more than you wish to be quarantined with her/him. 

Even if you solely own the house, now is not the time to remind anyone of that. Now is the time to discuss how to function civilly, smartly and safely. Share resources. Money may be tight, and so are available food products. Plan together. Chances are one of you is more resourceful than the other at cooking, stretching supplies, improvising, sanitizing; one may be more adept at technology. Discuss it all, without rancor, without judgment. This crisis will pass; you will be back on track for your divorce. Perhaps the spirit of cooperation you engender now will carry over to your divorce negotiations.

But if you are in any way being physically abused by your housemate, do what you should do when there is no pandemic: call the police. Your safety comes first.

If you are in the process of a divorce or are divorced and you and your co-parent reside in different households, do not deny your children SAFE access to their other parent—Skype, Zoom, FaceTime, telephone calls as frequently as desired. Social distance walking, bike riding, skateboarding, whatever your children are into. Try to imagine what it would be like if you were quarantined away from your children.

Now might be the time to share with your children who undoubtedly, like it or not, miss their other parent, some of the good times you all had together. Look at old photos, past videos. If you have the technological capabilities, scan and send the children’s photos, drawings, letters, etc. to your co-parent. When it comes to your children, whether you reside with your co-parent or not, you are in this together; making it less painful to your co-parent will make it easier for your children as well.

All you do during this pandemic will be remembered by your children, your co-parent, your former spouse/partner— and by yourself. 

By Sharon L. Klein, Family Wealth Strategist, Trusts & Estates Attorney

The Role of Life Insurance in Divorce Proceedings

In many divorce proceedings, life insurance plays an integral role as part of the ultimate resolution/settlement, whether it is an asset to be allocated between the parties or is required to be maintained for some period to secure settlement obligations.

Now more than ever – with the coronavirus pandemic wreaking havoc in this country, unprecedented jobless claims, and highly volatile markets – parties are well-advised to ensure settlement obligations are appropriately secured and to consider existing life insurance as a potential marital asset.

Periodic Life Insurance Policy Reviews Can be Critical

It is important to review life insurance policies periodically to ensure they are performing as intended at the best cost, and that the premiums are being paid by the responsible party.

A policy review may uncover some or all of the following factors:

• The interest rate environment could have affected the policy performance, particularly if initial illustrations were run in a different interest rate environment
• Market returns may have underachieved expectations
• Policies issued prior to 2009 are based on 1980 mortality tables. Life expectancies have increased over time which may generate lower premium rates in newer policies
• Newer policies have guaranteed and/or extended Death Benefit Guarantees that may not have been available with the original policy
• There may have been a change in market conditions, the health of the insured or the original intention in purchasing the insurance (for example, to fund education), which may make other insurance options more attractive to consider.

Irrevocable Life Insurance Trusts (ILITs)

Utilizing an Irrevocable Life Insurance Trust (ILIT) can be an advantageous way to purchase and maintain life insurance in divorce and other contexts. An ILIT is an irrevocable trust designed to hold ownership of an insurance policy. To create an ILIT, an individual establishes a trust and transfers funds to the trust. The trustee then purchases a life insurance policy payable to the trust upon the insured’s death. The primary benefit of using an ILIT is that, upon the death of the insured, policy proceeds pass to heirs free of estate taxes. An ILIT can also hold existing policies transferred to it by an insured. Provided the insured lives for three years following the transfer of the policy, the policy proceeds can avoid taxation in the insured’s estate.

5 Key Questions Family Law Practitioners Should Consider When Dealing with Life Insurance

Crucial questions a family lawyer or other family law practitioner should consider when dealing with life insurance in a divorce proceeding include:

1. Are premium notices being sent to the correct address and are premiums being paid on time?

It is critical to ensure that premiums are being paid in a timely fashion. Failure to maintain a policy can leave the obligor’s estate liable to pay the entire amount of the insurance proceeds – but full recovery might not be possible if the estate has insufficient assets.

In Woytas v. Greenwood Tree Experts, Inc.,⁽¹⁾ a Marital Settlement Agreement (MSA) required an ex-husband to maintain life insurance policies to secure his child support and alimony obligations. The MSA provided that, if either party failed to maintain the life insurance policy requirements, that party’s estate would be liable for any outstanding obligations owed under the agreement. The policy included a “suicide exclusion” barring recovery of benefits if the insured were to commit suicide within two years of purchase, which he did. The New Jersey Supreme Court affirmed that the ex-husband failed to “maintain” life insurance, and therefore breached the MSA, entitling the beneficiaries to payment from the ex-husband’s estate for the amount of the unrecoverable proceeds. Since the estate was less than the value of the claim, the court ordered that the entire balance of the estate be paid to the ex-wife.

Similarly, if no one is confirming that the premium notices are being sent to the right address, the result can be disastrous.

In Orchin v. Great-West Life & Annuity Insurance Company,⁽²⁾ the insured’s friend and fellow dentist Orchin served as trustee of a trust holding a life insurance policy. He did not miss a single premium payment from 1993 (when the policy was assigned to the trust) through January 2009. In April 2009, Orchin moved his residence. Though he claimed to have told the post office his forwarding address, the insurance company was never notified of this change. It continued to send payment notifications to Orchin’s old address, and as a result, Orchin never received them – nor the notices that the policy was in default, nor the notice that the policy eventually lapsed.

On January 15, 2010, the insured died suddenly. At this point, Orchin realized he failed to pay the previous premium payments. Omitting to mention that the insured had died, Orchin convinced a supervisor to exercise her authority to make a one-time exception and reinstate the policy.

When Great-West discovered that the insured had died before the insurance was reinstated, they denied the claim. The insured’s wife and Orchin brought suit against Great-West for improper termination of the policy and breach of contract, and the insured’s wife also brought suit against Orchin for breach of fiduciary duty.

The court held that Great-West’s decision to reinstate the coverage was unenforceable. Although “a close question,” the court denied Orchin’s summary judgment motion because issues of fact remained. Specifically, there were questions regarding whether it was reasonable for Orchin to expect the insurance notices to reach his new address and whether he exercised ordinary diligence.

As noted, if an insurance policy required pursuant to a settlement agreement or court order lapses for failure to pay the premium, there may be a claim against the insured (or his or her estate, if deceased). However, there may not be sufficient assets to satisfy the value of the claim. Accordingly, practitioners might recommend that duplicate premium notices and/or confirmations of payment are sent to the other spouse or another party, or that some other arrangements are made to check that the policy is maintained.

As well as emphasizing the importance of having a reliable policy review mechanism in place to prevent a policy lapse, the Orchin case also highlights the issue that, when friends or family members are appointed as trustees, oftentimes they are simply unaware of the myriad of duties to which they are subject. One important step a trustee can take to minimize fiduciary risk is to hire trusted professional advisors who are cognizant of the responsibilities imposed on fiduciaries, and have expertise in fulfilling those responsibilities.

2. Is the policy properly titled from an ownership perspective?

As noted, if insurance is held in a properly designed insurance trust, the proceeds should pass free of estate taxes to heirs. If, however, a policy is owned by the insured, the proceeds will be includible in his estate, and will be potentially subject to estate tax (in 2020 the top federal estate tax rate is 40% and top state estate tax rates are 16%).

Attorneys may be subject to a malpractice action if insurance is not appropriately titled, and attorneys have been sued for failing to correctly advise clients as to how insurance should be owned. Whether a third-party beneficiary can maintain a malpractice action against an estate planning attorney depends on state law, and most states permit those actions to be brought under the appropriate circumstances. Very few states follow the concept of strict privity, which provides that only the client who suffered the malpractice can maintain an action against the attorney.

A Sampling of How Different States Approach the Issue of Privity

California

In Biakanja v. Irving,⁽³⁾ the California Supreme Court rejected the strict privity test for professional liability. That court held that the determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are:

1. the extent to which transaction was intended to affect the plaintiff,
2. the foreseeability of harm to him,
3. the degree of certainty that the plaintiff suffered injury,
4. the closeness of the connection between the defendant’s conduct and the injury suffered,
5. the moral blame attached to the defendant’s conduct, and 6. the policy of preventing future harm.

Florida

In Florida, generally, a legal malpractice claim may be brought only by one who is in privity with the attorney. However, an exception exists that permits an intended third-party beneficiary of the legal services to bring suit where “testamentary intent as expressed in the will … [was] frustrated by the attorney’s negligence and as a direct result of such negligence the beneficiaries’ legacy [was] lost or diminished.”⁽⁴⁾

Hawaii

In Hawaii, a beneficiary may sue a testator’s attorney for failing to draft an instrument that carries out the testator’s intentions.⁽⁵⁾

Michigan

In Michigan, a beneficiary may sue a testator’s attorney for failing to draft an instrument that carries out the testator’s intentions. However, Michigan courts have declined to allow plaintiffs to introduce extrinsic evidence to prove the testator’s intent when the trust terms are clear and unambiguous.^[6]

New York

Until recently in New York, absent fraud, strict privity was required to maintain a legal malpractice claim against an estate planning attorney. Since negligence in the estate planning context is usually not discovered until after a client’s death, the strict privity requirement often resulted in the cause of action dying with the client.

In Estate of Saul Schneider v. Finmann,⁽⁷⁾ the decedent’s estate commenced a malpractice action against the decedent’s estate planning attorney, alleging that the attorney negligently advised the decedent to transfer, or failed to advise decedent not to transfer, an insurance policy into his own name. The result was that the insurance proceeds were includable in the decedent’s estate and subject to estate tax. With proper planning, the policy should not have been in the decedent’s name, and the proceeds should have passed to heirs free of estate tax.

The New York Court of Appeals held that sufficient privity existed between the personal representative of the estate and the estate planning attorney for the personal representative to maintain a malpractice claim against the attorney on the estate’s behalf. According to the court, the strict privity rule leaves the estate with no recourse against an attorney who planned the estate negligently, and the estate essentially “stands in the shoes of a decedent,” giving the estate capacity to maintain the malpractice action.

West Virginia

In West Virginia, a direct, intended, and specifically identifiable beneficiary may sue a testator’s attorney who prepared the will where the testator’s intent expressed in the will has been frustrated by negligence on the part of the attorney so that the beneficiaries’ interest(s) under the will is either lost or diminished.⁽⁸⁾

Perhaps the most important lesson is not to rely on a privity doctrine to avoid liability, but for family law attorneys to be cognizant of adverse tax consequences and to carefully consider ownership of insurance policies with estate planning professionals.

3. Does the Policy Have the Correct Beneficiary Designation?

Divorced individuals and those in the process of getting divorced should update all their important planning documents, account titles and beneficiary designations to be certain chosen heirs are still appropriate. Of course, during the pendency of a divorce, parties may be prohibited from transacting financial affairs except in the usual course of business for customary and usual household expenses. This prohibition is designed to maintain the status quo and preserve marital property until final determination. Accordingly, clients should change the documents they are entitled to change immediately (in most jurisdictions a Will can and should be changed as soon as possible, subject to state rights and prior agreement), and be poised to change the balance as soon as they are permitted.

What if estate planning documents are not updated following divorce, and an ex-spouse remains the beneficiary at death? About half the states in the U.S.⁽⁹⁾ have so-called revocation on divorce statutes. These statutes can revoke bequests to ex-spouses in wills or other estate planning documents if those documents have not been updated to reflect the divorce at the time of an individual’s death. However, half the states in the U.S. do not have these statutes, and even among those that do, not all revoke life insurance designations. Moreover, even if a revocation on divorce statute does apply, the statute will be inapplicable during the pendency of the divorce, until the final divorce decree is entered.

In Sveen v. Melin,⁽¹⁰⁾ decided by the Supreme Court on June 11, 2018, the court determined that the retroactive application of a Minnesota statute does not vio late the Contracts Clause of the U.S. Constitution.

The statute under consideration provides that “the dissolution or annulment of a marriage revokes any revocable… beneficiary designation… made by an individual to the individual’s former spouse.” Under the statute, if one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation so that the insurance proceeds will instead pass to the contingent beneficiary or the policyholder’s estate upon death. The decedent’s children argued that under Minnesota’s revocation-on-divorce law, their father’s divorce canceled his ex-spouse’s beneficiary designation, leaving them as the rightful beneficiaries. The ex-spouse claimed that, because the law did not exist when the policy was purchased and she was named as the primary beneficiary, applying the later-enacted law to the policy violated the Constitution’s Con tracts Clause.

The court found that the law does not substantially impair pre-existing contractual arrangements. First, the law is designed to reflect a policyholder’s intent – and so to support, rather than impair, the contractual scheme. It applies a prevalent legislative presumption that a divorcee would not want his former partner to benefit from his life insurance policy and other will substitutes. Second, the law is unlikely to disturb any policyholder’s expectations at the time of contracting, because an insured cannot reasonably rely on a beneficiary designation staying in place after a divorce. Lastly, the law supplies a mere default rule, which the policyholder can undo in a moment. If the law’s presumption about what an insured wants after divorcing is wrong, the insured may overthrow it simply by sending a change-of beneficiary form to his in surer.

However, the most poignant lesson to be learned from cases like this is not to rely on state default law at all and to update all estate planning documents and beneficiary designations as soon as possible.

4. Are Taxes Apportioned as Intended?

A case decided in Georgia underscores the importance of having both the correct beneficiary designation and the tax apportionment result that was intended. In Smoot v. Smoot,⁽¹¹⁾ decedent’s ex-wife, Dianne Smoot, was the named beneficiary of life insurance and retirement assets that were included in the taxable estate. The decedent and Dianne had divorced in 2006, but the decedent had not changed any of his beneficiary designations. Having lost a previous action in which the decedent’s son from a prior marriage claimed that Dianne was not entitled to the decedent’s retirement benefits, the son argued in this action that Dianne was responsible for paying her pro-rata share of the federal estate taxes. The tax apportionment clause in the decedent’s will provided for taxes to be pro-rated against those who received property included in his taxable estate.

The court held that federal law governed the tax apportionment concerning the life insurance proceeds. However, regarding the retirement benefits, the court noted that, under Georgia law, “[a]ll provisions of a will made prior to a testator’s final divorce…in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” According to the court, because the will made no provision in contemplation of divorce, the tax apportionment clause had to be construed as if Dianne had predeceased the decedent. Accordingly, the tax apportionment clause did not apply to her, with the harsh result that not only did the exwife receive the retirement benefits, but she received them tax-free because her step-son was saddled with the tax liability.

Although some states may have default laws that would have prevented this result (because designations are revoked in the event of divorce or because of default pro-rata tax apportionment provisions), this case is another stark reminder not to rely on state law but to carefully update beneficiary designations.

5. What is the Value of Life Insurance Policies for Divorce Settlement Purposes?

Oftentimes, parties have existing life insurance policies, the value of which is factored into the division of property between them. Under the right circumstances, practitioners can consider a life settlement: the sale of a life insurance policy to a third-party investor, to raise cash for the divorce settlement. The policy holder can receive cash for the life insurance policy in exchange for the investor taking over the premium payments and receiving the death benefit upon the death of the insured. A life settlement could potentially yield a greater return for the policy holder than surrendering the policy to the insurance carrier for the cash value. The amount of the life settlement depends upon the policy’s death benefit and the insured’s life expectancy. If the death benefit is substantial and the insured is in poor health, the value of the life settlement will be greater. In comparison, if the death benefit is not very large and the insured is healthy, the value of the life settlement might not be cost-effective.

When calculating the expected proceeds from a life settlement, practitioners should be mindful of the tax consequences. The methodology for calculating the basis of life insurance contracts was recently revised under the Tax Cuts and Jobs Act of 2017. The new favorable law provides that no adjustment to basis is made for mortality, expense or other reasonable charges incurred under a life insurance contract.

The tax treatment of life settlement proceeds is generally determined in three tiers:

1. Proceeds received up to the cost basis of the policy are not taxed;
2. Proceeds representing the difference between the cost basis and the policy’s cash value are taxed as ordinary income; and
3. Proceeds received in excess of the policy’s cash value are taxed as capital gains.⁽¹²⁾

It will be important to value the proceeds from a life settlement after taxes to make sure the transaction is financially sound.

The Bottom Line: Collaboration Early and Often is Key

With many nuanced areas that cross professional disciplines, clients benefit when matrimonial, trusts & estates, accounting, and investment professionals partner throughout the whole divorce process – especially during the coronavirus pandemic.

(1)Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 206 A.3d 386 (2019)

(2)Orchin v. Great-West Life & Annuity Insurance Company, 2015 WL 5726334, 133 F.Supp.3d 138 (2015)

(3)Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (1958)

(4)Gallo v. Brady, 925 So. 2d 363 (Fla. Dist. Ct. App. 2006)

(5)Blair v. Ing, 95 Haw. 247, 21 P.3d 452 (2001)

(6)Mieras v. DeBona, 452 Mich. 278, 550 N.W.2d 202, at 209 (1996); In re Solomon Gaston Miller Trust, No. 341502, 2018 WL 6252061, at 7 (Mich. Ct. App. Nov. 29, 2018)

(7)Estate of Schneider v. Finmann, 15 N.Y. 3d 306, 933 N.E.2d 718 (2010)

(8)Calvert v. Scharf, 217 W. Va. 684, 619 S.E.2d 197 (2005)

(9)For example, the Uniform Probate Code, in effect in Alaska, Arizona, Colorado, Idaho, Massachusetts, Michigan, Montana, New Jersey, New Mexico, North Dakota, South Dakota, and Utah, revokes dispositions to and fiduciary nominations of the former spouse, as well relatives of the former spouse.

(10)Sveen v. Melin, 138 S. Ct. 1815, 201 L. Ed 2d 180 (2018)

(11)Smoot v. Smoot, 2015 TNT 69-13, No. 2:13-cv00040 (U.S.D.C. S.D. Ga. March 31, 2015)

(12)26 U.S.C.A. § 1016. See Rev. Rul. 2020-05

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Sharon L. Klein is President of Family Wealth, Eastern US Region, for Wilmington Trust, where she also heads the National Divorce Advisory Practice. She is a Fellow of the American College of Trust and Estate Counsel and a member of its Family Law Task Force, she chairs the Domestic Relations Committee of Trusts & Estates magazine, and sits on the Advisory Board of Family Lawyer Magazine. Beginning her career as a trusts & estates attorney, Sharon has over 25 years’ experience in the wealth advisory arena and is a nationally recognized speaker and author. https://www.wilmingtontrust.com/divorce/

This article was originally posted on the Family Lawyer Magazine

By, Carolyn N. Daly, Esq. of Daly & Associates LLC

The COVID-19 pandemic has impacted all of us with orders to stay at home, self-isolate and social distance.  This presents a number of unique challenges for family law practitioners.  One of the most serious challenges is that for some of our clients, that mandate means that it leaves them home with their abusers.

 

Domestic violence is never acceptable, at any time.  But now that Governor Murphy has issued a “stay at home” order, there has been an increase in domestic violence situations reported.  This is unsurprising as victims are forced to remain home with abusers on a continuing basis and the situation is becoming stressful, even for the most calm among us.  The opportunity for the abuse to continue or to occur for the first has therefore grown dramatically.  The Department of Children and Families has been trying to raise awareness regarding this issue, even tweeting about it, and on April 2, Governor Murphy spoke about it during his daily press conference.

If you are a victim of domestic violence, it is important to remember there is help out there for you, even now:

• Your first line of defense is your local police department.  The police are still working to ensure you are safe and if someone commits an act of domestic violence against you, you should call 9-1-1 or go to your police station.  (The County courts are closed to the public at the moment and are not taking complaints for a temporary restraining order.)  Complaints for a Temporary Restraining Order are being taken and processed at the police stations with municipal court judges.  Remember that many police departments have specific policies for domestic violence cases, including removing an abuser from the home if there are signs of physical abuse. The police can also put you in touch with a member of their Crisis Response Team to connect you with resources and help you in applying for a temporary restraining order.
• Remember that as part of a temporary restraining order, you can ask a judge to grant you a number of things, including temporary possession of the house, temporary custody of minor children, temporary possession of your car, and/or emergent monetary relief so that you have money to pay bills and buy groceries and other necessities.  Thus, no victim should be afraid that by filing for a TRO, they risk being homeless, penniless, or leaving their kids with an abuser. 
• The courts may be physically closed, but they are still working virtually.  If the court closure does not allow your matter to proceed to a final hearing, your temporary restraining order will remain in effect for the foreseeable future. 

• The courts are trying to find ways to have virtual final hearings to grant or deny Final Restraining Orders and move these matters forward.  They are trying to address amendments to Temporary Restraining Order, voluntary dismissals by the victim and other issues such as support, parenting time and access to the home by the accused in order to obtain personal items if not addressed in the initial Temporary Restraining Order.  In Morris County, at least, they are now taking amendments via email.  Anyone seeking to amend a temporary restraining order should email the request to Leila.gonzalez@njcourts.gov  Be sure to include all contact information when you send the request.  Then, if an amendment requires a change to predicate act or reliefs, the court will be in contact with you to schedule a teleconference with a Judge.
• If you need additional help, there are a number of other organizations working tirelessly to help you, including:

-JBWS, whose Morris County Helpline Number is (973) 267-4763.  JBWS is still operating their legal advocacy services telephonically, as well as remote counseling services and an emergency shelter;
-Local police departments will give you the opportunity to speak to a crisis response team member if you call them;
-The New Jersey Coalition to End Domestic Violence, whose 24 hour helpline is (800) 572-7233 or visit https://njcedv.org/covid19/ for resources.
-The National domestic violence hotline (1-877-R.U.ABUSED; 1-877-782-2873) or visit https://thehotline.org
-If all you have is a phone text LOVEIS to 22522.

If you are afraid to pursue these avenues while in the home, remember there are still a number of legitimate reasons to leave the house.  You can still go grocery shopping, order curbside takeout at many restaurants for pick up, leave to get something at your local drug store, etc.  Once you are out of the home, and the eyes of your abuser, you can make the necessary calls or go to the police station to seek assistance. 

If you or someone you know has any questions regarding these issues or other family law, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We are working remotely but we remain fully available to help you and your family in this difficult time.