The Progressive Lawyer

“In every case, the court shall make specific findings of fact and evidence relevant to all issues pertaining to asset eligibility or ineligibility, assets valuation, and equitable distribution including specifically, but not limited to the factors set forth in this section.”

N.J.S.A. 2A:34-23(a) (child support), N.J.S.A. 2A:34-23(b) (alimony) and N.J.S.A. 9:2-4 (child custody) provide similar mandates.

By way of example, New Jersey's child custody statute contains 14 factors that, when presented in graphical format, truly provide a framework for presentation and later argument; and ultimately for the preparation of findings of fact and conclusions of law following trial.

How better to present a client's case concerning the mandatory factors than by reviewing them one-by-one. It is through such a factor-based analysis that counsel can best lay the foundation for the proofs intended to be produced and the arguments intended to be made. Consider the application of the matrix approach in the context of the following hypothetical fact pattern:

Wilma and Fred married when they were relatively young. When she graduated from college, Wilma entered the teaching profession, worked in a parochial elementary school for the first 5 years before the birth of the first of their three children, and then became a “stay-at-home mom.” Fourteen years later, Wilma was still a stay-at-home- mom with two teenaged sons and an 11-year-old daughter, while Fred pursued his career as an attorney.

Recently, Wilma obtained employment as a receptionist. When this matter came to court, the parties had accumulated a marital home worth $275,000, and encumbered by a $175,000 mortgage; tangible personal property having an appraised resale value of $25,000; two cars, Wilma's BMW, worth $75,000, and Fred's Mercedes worth $90,000; a stock portfolio of $40,000; a money market account worth $60,000; and a 401K interest worth $120,000. The parties have revolving charges totaling $9500. Wilma and Fred's divorce was filed at a time when Wilma was 43 and Fred was 47. The five matrices in these pages present Wilma's version of the case, offered with suggested advocacy based upon the fact pattern reflected above.

Beginning with the argument that Wilma should be entitled to 75% of the $100,000 equity in the marital home, while Fred should retain 60% of his 401(k), we have set the scene for some “horse-trading.” While keeping the total entitlements the same at $265,750 for Wilma and $234,750 to Fred, logical trade-offs can be negotiated or urged to optimize the plan. Because Wilma will be retaining the marital home, let's start by pushing the remaining 25% of its $100,000 equity to her side of the table. Fred, on the other hand, would not mind retaining more of his 401(k). Therefore, we would argue that he be allowed to retain an additional $28,200. That transaction would leave Fred up by $6400.

If Wilma retains all of the tangible personal property, the extra $10,000 she would receive from Fred's share would leave Fred down by $13,600. However, we would like each party to retain their own cars, and Fred's car is worth $15,000 more than Wilma's. Netting Fred's $37,500 interest in Wilma's car against her $45,000 interest in Fred's Mercedes, Wilma's share of the adjusted distribution would trail Fred's by $1400. Fortunately, that is exactly the difference between the $5450 MasterCard debt, which Fred will now assume, and the $4050 Visa bill that will become Wilma's responsibility. See below for an example of what the matrix would look like.

Please feel free to apply this effective approach to your cases. Today's word processing equipment and online legal research make the tool relatively easy to master. Embedding formulae for quick calculations within the numerical matrices makes the trade-off process a breeze.

There are several basic tools or road maps that can be applied to guide divorce lawyers in effectively organizing and presenting their cases. An immediately effective tool, so obvious but also often forgotten, is comprised of the factors that are contained within a given jurisdiction's statutes and rules. Regardless of jurisdiction and whether contained in rule or statute, there are always factors that are to be considered before any court can make its determinations. All too often, however, these factors are ignored or at least not presented in the most coherent manner possible. If we accept as an initial premise that the family courts, regardless of jurisdiction and vicinage, recognize that these standards and rules need to be considered, we should, as an important part of our testimonial or briefing process, lay out the standard and rule and apply the facts of our cases to the criteria in the most simplistic and straightforward manner.

Consider for the moment that, at the end of a contentious trial, the court asks us to present proposed findings of fact and conclusions of law. Using the guideposts our statutes and rules present, the matrices presented in this article will permit an organized presentation of the factual predicates that form the basis of our cases. This approach is not limited to post-trial procedures; it can also be effectively used for pre-trial and pre-motion arguments, as well as for early settlement panel presentations and settlement conferences. (Note that while this article relies to some extent on the statutory factors relevant to New Jersey, this progressive approach to advocacy can be effectively employed in any jurisdiction by simply substituting the appropriate statutory components.)

The importance of proceeding in this fashion can be seen in the statutes themselves. For example, in N.J.S.A. 2A:34-23.1, New Jersey's equitable distribution statute, the legislature has mandated:

“In every case, the court shall make specific findings of fact and evidence relevant to all issues pertaining to asset eligibility or ineligibility, assets valuation, and equitable distribution including specifically, but not limited to the factors set forth in this section.”

N.J.S.A. 2A:34-23(a) (child support), N.J.S.A. 2A:34-23(b) (alimony) and N.J.S.A. 9:2-4 (child custody) provide similar mandates.

By way of example, New Jersey's child custody statute contains 14 factors that, when presented in graphical format, truly provide a framework for presentation and later argument; and ultimately for the preparation of findings of fact and conclusions of law following trial.

How better to present a client's case concerning the mandatory factors than by reviewing them one-by-one. It is through such a factor-based analysis that counsel can best lay the foundation for the proofs intended to be produced and the arguments intended to be made. Consider the application of the matrix approach in the context of the following hypothetical fact pattern:

Wilma and Fred married when they were relatively young. When she graduated from college, Wilma entered the teaching profession, worked in a parochial elementary school for the first 5 years before the birth of the first of their three children, and then became a “stay-at-home mom.” Fourteen years later, Wilma was still a stay-at-home- mom with two teenaged sons and an 11-year-old daughter, while Fred pursued his career as an attorney.

Recently, Wilma obtained employment as a receptionist. When this matter came to court, the parties had accumulated a marital home worth $275,000, and encumbered by a $175,000 mortgage; tangible personal property having an appraised resale value of $25,000; two cars, Wilma's BMW, worth $75,000, and Fred's Mercedes worth $90,000; a stock portfolio of $40,000; a money market account worth $60,000; and a 401K interest worth $120,000. The parties have revolving charges totaling $9500. Wilma and Fred's divorce was filed at a time when Wilma was 43 and Fred was 47. The five matrices in these pages present Wilma's version of the case, offered with suggested advocacy based upon the fact pattern reflected above.

Beginning with the argument that Wilma should be entitled to 75% of the $100,000 equity in the marital home, while Fred should retain 60% of his 401(k), we have set the scene for some “horse-trading.” While keeping the total entitlements the same at $265,750 for Wilma and $234,750 to Fred, logical trade-offs can be negotiated or urged to optimize the plan. Because Wilma will be retaining the marital home, let's start by pushing the remaining 25% of its $100,000 equity to her side of the table. Fred, on the other hand, would not mind retaining more of his 401(k). Therefore, we would argue that he be allowed to retain an additional $28,200. That transaction would leave Fred up by $6400.

If Wilma retains all of the tangible personal property, the extra $10,000 she would receive from Fred's share would leave Fred down by $13,600. However, we would like each party to retain their own cars, and Fred's car is worth $15,000 more than Wilma's. Netting Fred's $37,500 interest in Wilma's car against her $45,000 interest in Fred's Mercedes, Wilma's share of the adjusted distribution would trail Fred's by $1400. Fortunately, that is exactly the difference between the $5450 MasterCard debt, which Fred will now assume, and the $4050 Visa bill that will become Wilma's responsibility. See below for an example of what the matrix would look like.

Please feel free to apply this effective approach to your cases. Today's word processing equipment and online legal research make the tool relatively easy to master. Embedding formulae for quick calculations within the numerical matrices makes the trade-off process a breeze.