Tag: Equitable distribution protection

Enforcing a Gusher of an Equitable Distribution Award

After his divorce, Todd Kozel, a former oil executive, was ordered by a family court to transfer 23 million shares from his oil company to his wife as equitable distribution. When he didn’t, a $38 million judgment was entered against him. Why was that enforcement order overturned?

Equitable Distribution Oil

Striking Oil

Todd and Ashley married in 1992, and she filed for divorce in 2010. Todd is the chief executive officer of Gulf Keystone Petroleum, Ltd., an oil and gas exploration company.

When the parties divorced, much of their shared wealth consisted of Gulf Keystone stock, which is publicly traded in London. The parties settled after he agreed to transfer Gulf Keystone stock to Ashley as equitable distribution.

Under their Settlement Agreement, the husband was obligated to transfer twenty-three million shares of Gulf Keystone stock to his wife as equitable distribution on or before January 27, 2012. Upon delivery, the former wife would then be free to sell her stock to anyone at any time.

But Todd didn’t deliver his twenty-three-million shares by January 27, 2012. Instead, he transferred the stock to her in four batches at later dates: (1) 2,034,447 shares on January 30, 2012; (2) 3,798,886 shares on February 3, 2012; (3) 5,666,667 shares on February 21, 2012; and (4) 11,600,000 shares on March 1, 2012.

Invoking the trial court’s continuing jurisdiction to enforce the agreement, Ashley filed papers with the family court. Although her filings were styled as petitions to enforce the agreement, they alleged what amounted to claims for money damages for alleged breaches of their agreement.

After granting partial summary judgment on liability and holding a trial on damages, the family court found Todd in breach and awarded her: $34,611,702 as damages for his failure to deliver the stock on time and another $3,850,500 as damages for the breach to provide tax information.

Florida Equitable Distribution

Why was Ashley awarded so much of Todd’s Gulf Keystone stock? I have written about equitable distribution before. Florida is an equitable distribution state when it comes to dividing business assets in divorce.

In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

When distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

When the Oil Runs Out

While Todd was in default for his failure to timely deliver the Gulf Keystone stock, he made all of the additional equitable distribution payments required. On November 28, 2012 — eight months after the final transfer of stock — Ashley argued that Todd’s breach of the agreement caused her to suffer substantial damages because it denied her an opportunity to sell the stock at a time when market conditions were favorable.

But Todd argued that a family court lacks jurisdiction to consider Ashley’s claim because what she was asking for amounted to a claim for general damages for breach of contract.

So, Ashley amended her petition, styling it as one to “enforce” the agreement. She alleged that the court had jurisdiction to enforce the agreement through an award of damages for losses that she allegedly incurred as a result of the failure to deliver the stock timely.

The family judge awarded her $34,611,702 and another for the tax basis dispute $3,850,500, to be placed in escrow (presumably pending the outcome of a refund request to the IRS).

The question in a case like this is whether and to what extent a family court’s continuing jurisdiction to enforce a final judgment extends to claims for money damages for breaches of a settlement agreement.

When a court orders compliance with the terms of a settlement agreement – when it requires a party to perform an obligation in the agreement — it is engaged in proper post-judgment enforcement over which it has continuing jurisdiction. But when a court awards damages as a substitute for a party’s performance, it is not engaging in legitimate post-judgment enforcement but a separate claim for breach.

The former wife sought and the family court awarded general, benefit-of-the-bargain damages for the breach of the agreement that was not specified in the agreement. In reversing the judgement, the appellate court ruled that “couching these remedies as “enforcement” of the [agreement] does not change what their substance is: general damages for breach.”

The opinion is here.

 

The Art of Property Division

Developer Harry Macklowe and his wife, Linda, were ordered to split their “internationally renowned collection” of modern art from the likes of Andy Warhol and Alberto Giacometti in a property division case involving hundreds of millions of dollars.

property division

Who Needs Nine Marilyn Monroes?

A New York court in Manhattan ruled that the Macklowe art trove amassed during 59 years of marriage should be sold and the profits shared.

In a sign of the acrimony that fueled a prolonged legal dispute, the couple couldn’t agree on what the collection was worth — Harry’s expert said $788 million, while Linda’s said $625 million.

Their collection, which encompasses some 165 pieces of art, among them Andy Warhol’s Nine Marilyns which is estimated to be worth $50 million, Le Nez by Alberto Giacometti, worth up to $35 million, Jeff Koons Vest with Aqualung for $10-11 million, and Jackson Pollock, Number 17, valued at up to $35 million..

Florida Property Division

I’ve written about property division in Florida. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties.

In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, the court can give less than equal. When a court orders an unequal distribution, it must base the decision on certain factors, including some of the following:

  • The contribution to the marriage by each spouse.
  • The economic circumstances of the parties.
  • The duration of the marriage.
  • Any interruption of personal careers or educational opportunities.
  • The contribution to the personal career or educational opportunity of the other spouse.
  • The desirability of retaining any asset.
  • intentional dissipation, waste, depletion, or destruction of marital assets.
  • Any other factors necessary to do equity and justice between the parties.

The courts don’t even have to wait for the end of the case to start a property division. Florida law allows courts, if they find good cause that there should be an interim partial distribution during a divorce action, to equitably distribute property sooner.

The Nose Knows

After a 14-week trial last year, the divorce judge determined in a 65-page opinion how to split all the assets held by the 81-year-old developer and his wife, who is on the board of the Metropolitan Museum of Art.

Linda will get to keep $40 million in art but will have to pay half of that to Harry, she’ll get to keep their 14,000-square-foot apartment at the Plaza Hotel valued at $72 million but have to pay her estranged spouse $36 million for his share. Harry will retain ownership of $82 million in commercial real estate — including 737 Park Ave. — but pay Linda $41 million.

The couple will split the $62 million they have in cash, the judge said.

Linda Macklowe gets to keep another $40 million of art — including works by Koons and Picasso, but must pay Harry $20 million in credit, the judge said.

The couple were married Jan. 4, 1959, when he was a 21-year-old ad salesman for Parents Magazine and she was 20, working as a receptionist. They had no prenuptial agreement.

The Bloomberg article is here.

 

Can your Spouse Secretly Sell your House?

Real Housewives of New Jersey star Danielle Staub is claiming her estranged husband Marty Caffrey listed their Englewood, N.J. home for sale without telling her. Can that happen in an equitable distribution state?

equitable distribution

Real Listing?

According to People:

“Danielle did not know her home, where she lives, was listed for sale until she saw a story about it online,” the rep says. “This is yet another example of the blatant disrespect and emotional abuse she has endured in this relationship.”

Caffrey, 66, filed for divorce from the reality star in August—just four months after their wedding, and Staub, 56, has been vocal about how hurt she was by how public their split was.

In July, Caffrey posted a negative rant about Staub on social media. The pair took out restraining orders against each other that same month following a domestic dispute at the New Jersey home that is now on the market. The restraining orders were both later dropped.

The six-bedroom, seven-bathroom house features a gourmet kitchen, high ceilings, a media room, and a sauna. The property is listed for $2.195 million with Frances Aaron and Miriam Finkel of Prominent Properties Sotheby’s International Realty.

When asked about the sale of their home, Caffrey tells People, “Danielle’s version is untrue and other than that I have no comment.”

Real Equitable Distribution

I’ve written about the equitable distribution of houses before. New Jersey, like Florida, is an equitable distribution state. California, and many other western states, are community property states.

In Florida, in every divorce the family court will set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal.

All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, is presumed to be a marital asset in Florida. If a spouse makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the property is nonmarital.

It is unclear whether Staub and Caffrey have joint title to the New Jersey house, or it is titled in one of their names alone, or even a holding company. Generally, it’s a good idea to have all title owners sign a contract, or it may not be enforceable against the owner who did not sign.

Real Troubles

Back in New Jersey, although Staub claims she was unaware of her home being put on the market, she recently told People that she considers herself a “warrior,” and her experience with this divorce has been no different.

Prior to their public problems, the two had trouble agreeing over many things in their relationship, Staub said. Tense dynamics with their blended family (Caffrey has three adult children from a previous relationship) also came into play.

“He doesn’t like me and he doesn’t like my children,” Staub claimed. “My kids have never been anything but respectful and lovely towards him even though he hasn’t been the same towards their mom.

Caffrey, in a statement to People at the time, said, “This is not my world nor do I have any further interest in it. These are manufactured celebrities in manufactured lives who manufacture their own truths. I look forward to getting back to my reality among real people. My loving family and vast amount of friends.”

The People article is here.

 

Divorce and Cryptocurrency: A Bit of Bitcoin

Divorces are increasingly dealing with a new kind of asset: Cryptocurrencies. They are volatile and can be difficult to trace. What is a cryptocurrency, why are they so popular, and how are they a part of a property division in divorce?

Bitcoin is a type of cryptocurrency, and they are the latest way to potentially stash money so it can’t be found when it comes to dividing the marital estate.

Due to the supposed anonymity of Bitcoins, it seems practical and logical that people try to hide their cryptocurrencies from their spouses.

Cryptocurrencies are growing in ever larger value, and they are popping up more in divorces as a new class of asset to divide.

The law is familiar with the redistribution of many types of assets, like cash, bank accounts and other investments, but cryptocurrencies may be charting new ground.

Cryptocurrency

Cryptocurrencies are digital currencies not associated with a central government. Bitcoin, the biggest and most well-known, was developed back in 2009.

They are created and controlled by computer programs, or algorithms. Those algorithms lay out how transactions are made and recorded, and how new coins or tokens are found and released.

People and organizations known as “miners” keep records of every transaction, and attempt to solve complex computer problems that, when solved, reward them with new coins.

In effect, users record transactions directly between peers, rather than through banks or other intermediaries. That system is known as a blockchain and the transactions, and even the currencies, are sometimes referred to as “peer-to-peer.”

A major difference between a cryptocurrency and the U.S. Dollar is that, unlike the U.S. Dollar, the total amount that can ever be in circulation is limited. Because the total supply of the currency is restricted, you do not use more coins to pay for goods and services, but less.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their non-marital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

In Florida, if there is a justification for an unequal distribution, the court can do so, but must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition.

A major fight which can take place during mediation is whether a spouse is responsible for the 50 percent drop in value of a cryptocurrency.

Bitcoin Mania

One of the main problems with a cryptocurrency is their high volatility. It is hard to equitably distribute volatile assets which can gain or lose so much value so quickly.

The price of Bitcoin, for instance, the world’s biggest and best-known cryptocurrency, almost halved in value from its peak value in December.

Cryptocurrencies will be a significant feature in a large number of divorces. Although they can be traceable, cryptocurrencies are highly volatile, and they are not going to go away.

The Business Insider article is here.

 

Chinese Property Division

China’s Supreme People’s Court just redefined what a marital debt is. Now, Chinese spouses will no longer be on the hook for unreasonable marital debts during the marriage as part of a divorce settlement.

The Supreme People’s Court, in a revision to Article 24, said that debts will be considered marital liabilities only if both partners sign the original paperwork, or if a non-signatory later approves the borrowing.

The change does not apply to spending or borrowing considered reasonable in a marriage, such as payments made for shelter or food, the court said.

Speaking at a press conference, Supreme Court judge Cheng Xinwen said the update to the article was intended to reflect a changing society.

It was considered necessary in view of the rising number of cases of people finding themselves in financial difficulty because of their spouses’ clandestine borrowing, he said.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

China’s Distribution Solution

The previous version of the Chinese law stated that all debts incurred in a marriage were the joint liability of both partners.

Many people in China are in favor of the new law because of the values behind it.

I see no point in drafting an article to protect a creditor’s interests, as a person who’s able to lend money is always in the dominant position and capable of demanding that both spouses sign the paperwork before lending them money.

There were cases where husbands had sought to cheat their partners by concocting fake loan agreements in collaboration with dubious associates who would then demand repayment from the unsuspecting and legally defenseless wife.

Judge Cheng said that the law was introduced to help maintain market order – and creditors only as a consequence – at a time when there was a growing number of cases of couples trying to evade their debts by faking a divorce.

The South China Morning Post article is here.

 

Is the Gift Really Yours?

How are those gifts you received during the marriage handled in a property division? The thought comes to mind as more people are buying divorce gifts to be given during divorce parties. Many people are surprised to learn how their spouse’s gifts to them during the marriage are treated.

Florida Equitable Distribution

When people divorce, there is a property division which we call equitable distribution in Florida. I’ve written about property division in Florida many times before. Equitable distribution is governed by statute and case law.

Generally, courts set apart to each spouse their non-marital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

Equitable distribution is a court evolved concept in Florida. It is used to achieve as fair a division of marital assets as possible. Marital assets are those assets acquired by the parties during their marriage from their work efforts, services, and earnings.

In determining whether certain property is a marital asset, the question is not which party holds title to the asset.

Our statute defines assets and liabilities falling within each of these categories, and establishes certain presumptions to assist in categorizing each asset and liability during a property division. The court then divides the marital assets and liabilities between the spouses.

Dividing Gifts Between Spouses

Under well-established statutory and case law in Florida, is that a gift between spouses during the marriage is actually a marital asset.  But proving something valuable was a gift can be tricky, as people don’t prepare paperwork when they are giving gifts.

A gift between spouses during the marriage is established by showing donative intent, delivery or possession of the gift, and surrender of dominion and control of the gift.

In other words, a gift is made when a donor, intending to make a gift, delivers the gift to the donee and relinquishes all possession and control of the gift.

Was it a Gift or a Loan?

Married couples receive some money from third parties – such as parents and other parents – during the marriage: sometimes the money is to carry them over during an emergency. Should that money be divided between them? It depends on whether it was a loan, and they should give the money back, or it was a gift to both of them, and the money is theirs.

Gifts to either spouse from a third party – such as a parent – are considered separate property and are not divided by the court. However, the caution against commingling still applies. If a spouse deposited the money from her parents in a joint account, it then probably became marital property, even if it was intended just for her.

In many divorces, one spouse claims money received from or given to a parent, sibling, etc. was a gift and the other claims it was a loan. Circumstances can be painted in a different light many years after the fact, and lawyers and judges must piece together what information they can to make a case and a decision.

If you receive or make a loan during your marriage, make sure its terms are fully documented in some sort of written and signed promissory note. If you receive or make a gift, draw up simple paperwork indicating specifically to whom the gift is being made, and that there is no expectation of repayment.

 

Unequal Property Division

A Husband recently demanded an unequal property division in his divorce. He wanted more than half of a $225 million fortune, and for his Ex to get about $6 million. He claimed he was entitled to more than half because of his “genius”. Are you entitled to more than half in a divorce?

Valuing Genius

Randy Work, 49, a former executive at Texas-based private equity firm Lone Star, had first claimed that his wife of 20 years, Mandy Gray, was entitled to only $6m because she had an affair with the couple’s personal physiotherapist.

The pair, who are both American and have two teenage children, met in 1992 and married in 1995. They split up in 2013 when Gray began an affair with the couple’s physiotherapist, 44, who she now lives with in a rented flat in Kensington.

A British high court judge rejected the Husband’s claim that he made an “exceptional contribution” to the marriage and was therefore entitled to more than a 50-50 split of the couple’s assets, which include a mansion in West London, complete with swimming pool and fitness center and a ski lodge in Aspen.

Ruling on their divorce in 2015 Justice Holman told the businessman that his wealth contribution – which Work said totaled more than $300m in 10 years – was not “wholly exceptional” and rejected his claim to be a financial “genius”.

“I personally find that a difficult, and perhaps unhelpful, word in this context,” Holman said. “To my mind, the word ‘genius’ tends to be overused and is properly reserved for Leonardo da Vinci, Mozart, Einstein and others like them.”

Work, who has spent at least $3m fighting to keep his wife from collecting half of the family fortune, took the case to the court of appeal which on Tuesday unanimously rejected his appeal against the trial judge’s ruling.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, as in the Work divorce, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

However, courts generally can’t base unequal distribution on one spouse’s disproportionate financial contributions to the marriage unless there is a showing of some “extraordinary services over and above the normal marital duties.”

The English Divorce

During the divorce hearing Holman had said the case “should be so easy” to settle as there was “plenty of money to go round” and criticized the couple for descending into “unedifying and destructive pugilism”.

“In our view the husband has failed to demonstrate that Holman J’s decision was wrong,” three court of appeal judges said.

London has become known as the divorce capital of the world because British judges tend not to discriminate between breadwinner and homemaker and order equal splits of combined fortunes.

However, Work had hoped to convince the court of appeal judges to allow him to join those few men who had been granted more than half of the combined assets in a divorce in recognition of the “wholly exceptional nature” of their success.

Holman had ruled that although Work was an “astute businessman”, Gray was a “highly intelligent” woman who had given up her career to follow her husband to Tokyo, where he made hundreds of millions of pounds exploiting the Japanese financial crisis.

“A successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time or benefiting from a period of boom is not enough,” Holman said.

“It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skillful than past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.”

Holman said Work and Gray, 47, had been “two strong and equal partners” and he would not have been able to amass his vast fortune without her contribution.

The Guardian article is available here.

 

Divorce Asset Protection

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, August 17, 2016.

Nevada has little known laws to attract business in facilitating asset protection, including in divorce cases involving property division.

As the New York Times recently reported:

Over the last decade, for example, New Hampshire has passed nearly a dozen laws affecting trusts that expanded their life span, lowered taxes and made it easier to transfer assets. In 2013, the state created a special trust court subdivision to handle the complex litigation; last year, an overhaul of state banking laws simplified regulations.

Still, Nevada “is definitely the most aggressive. Starting with the absence of any state income tax and resilient secrecy protections, Nevada has added a passel of laws and regulations intended to lure trust business.

Individuals who establish irrevocable trusts have more flexibility to transfer assets to a new trust with more favorable terms. Creditors are blocked from access to money held in trusts.

I’ve written about equitable distribution before. In Florida, all marital assets are subject to equitable distribution. So, even if you leave assets to your children in a revocable trust, they can also be at risk to equitable distribution depending on the circumstances and how they are used.

However, if you create an Irrevocable Pure Grantor Trust (IPUG) and leave assets to your children in their own IPUG, there may be an argument to declare those assets as separate property.

The best way to protect assets in a divorce, of course, is to have a well-written premarital agreement covering the disposition of all of your assets in the event of divorce. Additionally, post-nuptial agreements can also be entered into during the marriage to cover the same ground.

In Florida, assets acquired before the marriage are your separate, non-marital assets. So are noninterspousal gifts, bequests, income from nonmarital assets and assets excluded in written prenuptial and postnuptial agreements.

The most important step to protect your separate assets is to keep them non-marital at all times. As soon as you put your non-marital or inherited money into a joint account with your spouse, that money will very likely be considered a marital asset to be divided in a divorce.

Even if you can show the judge the exact amount in a joint account that came from your inheritance or non-marital assets, the funds are commingled.

The New York Times article is here.