Even though your CFL Designation for Divorce Practitioners gives you the requisite financial knowledge to competently and advantageously draft your clients’ property settlement agreements, your knowledge alone is insufficient if your client refuses to take his or case seriously and follow your advice.
Such apparently is what happened in Barnhart v. Barnhart, a case ultimately heard by the Appellate Division of the Supreme Court of New York in 2017. Actually, the way the Court’s opinion reads, it appears that no one took this case seriously, neither the parties nor their respective attorneys.
Lack of Evidence
Under Section 202.16(h) of New York’s Uniform Court Rules for Matrimonial Practice, divorcing couples must submit statements of proposed distribution that include the following:
- Assets claimed to be marital property
- Assets claimed to be separate property
- The amount requested for maintenance
Nevertheless, neither Mr. nor Mrs. Barnhart submitted such a statement. In addition, neither attorney made an opening or closing statement at trial, nor did either side present expert evidence or indeed any financial evidence regarding the value of any asset the couple owned. The only people who testified were Mr. and Mrs. Barnhart themselves.
Asset Valuation Testimony
Mr. Barnhart testified that the couple’s home was worth $50,000. He also testified that he had “no idea” how much the couple’s 2012 Chevy Suburban was worth, but made no claim that he held title to it, admitting instead that his wife had possession of it and was paying off its lien. He further testified that Mrs. Barnhart was entitled to half of his retirement savings, that at one point they consisted of two accounts containing $80,000 each, but that one of them now contained only $8,000. Mrs. Barnhart did not contest any of this testimony.
As to his income, Mr. Barnhart testified that he had earned up to $125,000 annually during the marriage, but could now find no similar work and was reduced to earning $35,000 annually. Evidently the trial court did not believe Mr. Barnhart’s testimony, because it imputed $100,000 annual earning capacity to him. The judge believed Mrs. Barnhart’s testimony regarding her annual salary of $52,000.
Based on this scanty testimonial evidence, the trial court granted Mrs. Barnhart maintenance in the sum of $250 a week for 11 years, and also awarded the couple’s home and the 2012 Chevy Suburban to her. It instructed Mr. Barnhart to “take all necessary steps to place” $71,550 in his retirement account in Mrs. Barnhart’s name.
At this point, Mr. Barnhart finally decided to take his divorce seriously and appealed the trial court’s judgment, claiming that the judge abused his discretion by valuing the couple’s property in the amounts it did. He even went so far as to request the Appellate Court to order a retrial and order the trial court to order the couple to submit statements of proposed distribution pursuant to 22 NYCRR 202.16(h).
Appellate Court Decision
The Appellate Court refused to order a retrial. Noting that it could not find that the trial judge abused his discretion given the paucity of financial evidence, it affirmed all but one of the trial court’s decisions. It reversed the $71,550 amount the trial court ordered Mr. Barnhart to place in his retirement account in Mrs. Barnhart’s name, and ordered that the amount be decreased to $35,400 instead.
The moral? Sometimes it is too easy to handle your less-than-high-asset divorce cases in a routine manner, acceding to your client’s wishes even when you know that they are self-defeating at best and fail to abide by applicable law at worst. While you cannot force any client to do that which (s)he refuses to do, nevertheless it is in your own best interests to take each case seriously and protect yourself, especially when your client refuses to follow your advice.
In the Barnhart case, one can only speculate as to how much pressure either attorney put on his or her respective client to submit the paperwork required by New York law. One is also left to speculate as to whether or not a belatedly “repentant” Mr. Barnhart sued his attorney for malpractice.
For more information on financial issues you need to be aware of, how gaining your CFL Designation for Divorce Practitioners will give you the financial knowledge and skills you need to attract additional high-asset clients, and the other benefits of AACFL membership, please visit this page on our site.