Division of Assets

Pretrial Agreement – Enforceability.  Where the parties entered into a pretrial agreement purporting to establish their respective rights to the marital home but the agreement was never presented to the court, the judge was not required to abide by the agreement in his judgment resulting from a subsequent divorce trial. Britton v. Britton, 69 Mass.App.Ct. 23 (May 11, 2007)
 
Unequal Division Upheld.  The Appeals Court upheld a Probate Court judgment that ordered a 60-40 division in favor of the wife, finding that while the parties had contributed equally to the acquisition of marital assets but that the wife made superior contributions in terms of managing the assets and in her post-separation duties as the primary custodial parent.  Further justifying the result was the husband’s filing of four ancillary lawsuits that were consolidated with the divorce. O’Connor v. O’Connor, 73 Mass.App.Ct. 1109 (December 9, 2008) (Unpublished)
 
Premarital Asset Not Divided.  In a case involving a 16 year marriage, the Appeals Court upheld a Probate Court judgment that awarded an equal division of assets but permitted the husband to retain a premarital gift worth $600,000 on the date of their marriage (but not the appreciation of that asset which the court divided 60-40 in favor of the husband.)  While noting that there are no “hard and fast rules” regarding premarital assets, the Court found significant the fact that the monies were kept in the husband’s name.  The Appeals Court states, however, that it would have been preferable if the court had considered the role of each party in “managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property.”  Burr v. Burr, 73 Mass.App.Ct. 1105 (Unpublished) (November 18, 2008)
 
Trust Principal Not Included in Marital Estate.  In the same case (see above, Premarital Asset Not Divided), the husband was the beneficiary of a certain trust.  The Appeals Court upheld the Probate Court judgment that the trust was not part of the marital estate because the husband “does not have a present, enforceable right to use the principal of the trust.”  Further supporting the Probate Court conclusion, the Appeals Court noted that the terms of the trust gave trustees exclusive discretion to make payments from principal and, therefore, the husband’s interest in the trust principal was “too remote or speculative” to be included in the marital estate.  Burr v. Burr, 73 Mass.App.Ct. 1105 (Unpublished) (November 18, 2008)
 
Wife’s Misconduct Results in a Disproportionate Asset Split or Conduct Counts if it’s Really, Really Bad.  Conventional wisdom has it that bad conduct doesn’t really matter in an equitable division case except to the extent that it has a financial impact.  Tell that to Donna Wolcott.  One night in 2006, while Mr. Wolcott was ill and in a “weakened state,” Mrs. Wolcott plied her usually-abstinent husband with alcohol, causing him to fall off a boat. Mr. Wolcott had to swim a mile to shore and walk for several hours before he got help.  The fall caused him severe injuries – a broken nose, upper jaw and wrist, four broken teeth, and a “blown-out knee.” Then, when he returned home, Mrs. Wolcott forced her injured husband to sleep on the couch because his “breathing” bothered her.  Shortly afterwards, while he was still recovering, Mrs. Wolcott asked him to move out of the house.
 
Judging by her next action, even though he was out of the house, she was still bothered by her husband’s breathing.  Mrs. Wolcott proceeded to solicit her husband’s murder, telling a cousin she wanted the husband to “disappear” and asking him if he knew anyone in the Mafia.
 
Mrs. Wolcott’s lesser offenses – an adulterous “sexual affair,” a “foolhardy landscaping plan,” and $24,000 worth of unnecessary plastic surgery.
 
Not surprisingly, the judge wasn’t enamored with the sociopathic Mrs. Wolcott and awarded her only 10% of the marital estate.  She appealed and the Appeals Court affirmed the decision.  Wolcott v. Wolcott, 2011 Mass.App LEXIS 16 (January 6, 2011)
 
Military Pension – Income Stream or Marital Asset?  The Appeals Court reversed a Probate Court judgment in which a husband’s military pension (in pay status) was treated as a stream of income.  The Court noted that, while judges have the discretion to characterize military pensions as either streams of income or marital assets, the majority of cases treat them as marital assets.  Under the particular facts of this case, according to the Appeals Court, treating the pension as a stream of income would have been inequitable to the wife.  Casey v. Casey, 79 Mass.App.Ct. 623 (June 7, 2011)
 
Agreement to Divide Future Social Security Void.  Continuing the senior-citizen theme, a recent Colorado decision about social security piqued my interest. A divorce judgment incorporating an agreement of the parties required the husband to pay a portion of his future Social Security benefits to the wife as part of a property division.  The husband later moved to set aside this provision of the judgment, the motion was denied, and the husband appealed. The appellate court reversed, setting aside the provision and finding that it violated the anti-assignment clause of the Social Security Act.  The court also noted that the anti-assignment clause does not prohibit payments for child support and alimony – meaning that better research and creative drafting could have prevented the problem. In re Anderson, Colo. Ct. App. No. 09CA2592 (December 23, 2010)
 
Can Bernie Madoff Ruin Your Divorce?  Steve Simkin might have thought it shrewd to keep the Madoff investments in his divorce from Laura Blank (after all, where else do you get that kind of interest?)  After the Ponzi king confessed his sins, however, and Mr. Simkin discovered his “assets” were worthless, he asked the New York trial court to set aside the property division.  The trial court denied Simkin’s petition and he appealed.   The appellate court reversed the denial. At the appellate court, Ms. Blank argued that he could have redeemed what he believed to be his account in excess of its supposed value as of the 2004 valuation date the parties had chosen.  The court was unpersuaded — pointing out that Mr. Simkin never had an “account” with Madoff.  Indeed, by Madoff’s own admission, “there were no accounts within which trades were made on behalf of investors.”  Poor Simkin. Next time he gets divorced, I bet he bargains to keep the marital home.  Simkin v. Blank, N.Y. App.Div. No 3016101501/09 (January 4, 2011)