ANOTHER OBJECT LESSON IN PSA DRAFTSMANSHIP
December 21, 2011 § 2 Comments
What does the following language in a divorce property settlement agreement (PSA) mean?
The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].
That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.
Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.
Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.
Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.
The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.
In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.
This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”
A few suggestions:
- As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
- Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
- Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection.
- Here are five suggestions for improving your PSA’s.
- And here are five more.
- Here is a post about a nightmare scenario in draftsmanship.
- Kicking the can down the road, and why it’s not a good idea in your PSA’s.
- And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.
Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.
ANOTHER ASPECT OF IMPUTED INCOME
December 20, 2011 § Leave a comment
We’ve discussed imputed income here before. In essence, income can be imputed where the payor claims reduced income or incapacity in certain situations.
Another situation for imputed income arises where the judge finds that the payor has greater income than is reported on the financial statement and in the testimony. Such was the case in Brooks v. Brooks, decided by the COA on December 13, 2011.
In Brooks, at ¶ 9, the COA upheld the trial court’s decision not to accept the husband’s testimony about his income. The husband, Brandon, was a self-employed attorney who reported fluctuating income. The chancellor relied on Brandon’s 2007 income tax return to determine income because that was the only tax return he provided; he did not offer his 2008 or 2009 returns into evidence. In the absence of the two subsequent returns, the COA ruled, it was reasonable for the court to rely on and draw conclusions from the information submitted.
Brandon also contended that his income was insufficient to pay alimony to his former wife, Dawn, in the amount ordered, but the COA rejected that argument, at ¶ 22:
The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:
“. . . Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.”
From the payor’s standpoint, the more accurate and credible evidence you offer the court to establish income, the better off your client will be. Explain and document discrepancies and inconsistences, or run the risk that the court will construe them against your client.
From the recipient’s standpoint, attack income information and don’t take it at face value. You might persuade the judge to find that there is more income there than is being reported.
TEMPORARY SUPPORT AND ITS IMPACT ON THE FINAL OUTCOME
December 6, 2011 § Leave a comment
I argued with sporadic success when I was in practice that the court should consider the amount of temporary spousal support paid when making its final determination of equitable distribution. It’s only logical, when you think about it. The paying spouse is having to defer further accumulation of wealth to support the other, and, in some cases, is required to deplete a separate estate to do so. Many divorce cases take months, even years, to come to trial, and the payments for temporary support do mount up.
So what is the likelihood that you can prevail with such an argument?
A case you can cite for authority is Wells v. Wells, 35 So.3d 1250, 1258 (Miss.App. 2010). In that case, the chancellor had considered in her Ferguson analysis under “Any Other Factors That Should be Considered” the fact that the husband had paid the wife over $80,000 a year since the temporary judgment, including $1,500 a month in temporary alimony, and $650 a month as a grocery allowance. The COA affirmed the chancellor’s division of the marital estate, concluding that “We cannot find that the chancellor’s division was clearly erroneous. The Ferguson factors were thoroughly considered, and the division was made in such a way as to eliminate alimony.”
An arrow you might want to have in your quiver next time you’re looking to score a bullseye for your client.
REVISITING TRIAL CHECKLISTS
November 22, 2011 § 2 Comments
Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.
I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.
Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.
WHAT, ME WORRY?
June 30, 2011 § 6 Comments
Newman
It was the philosopher Alfred E. Newman who coined the epigram, “What, me Worry?” I suspect he also came up with the fallacious thought that “What you don’t know can’t hurt you,” which as any lawyer can tell you, is tragically and dangerously untrue.
Take as a case in point Ivison v. Ivison, 762 So.2d 219 (Miss. 2000). Mrs. Ivison got the former marital residence in the divorce, and the ex-husband paid the mortgage notes. The husband deducted the payments because he was advised that payments made to a third party on behalf of another are treated as alimony and are deductible, if they are mandated in a divorce judgment or property settlement agreement and meet the other criteria for alimony. Mr. Ivison took the deduction, and Mrs. Ivison got a nice, but businesslike letter from the IRS explaining that they wanted her to pony up the income taxes, which were in an amount significant enough to give Mrs. Ivison a bad case of hiccups and send her scurrying to court.
Mrs. Ivison complained to the chancellor that she had not been advised by her attorney at the time that the payments were going to be treated as income, and that she would never have agreed to the divorce settlement had she known. She convinced the sympathetic chancellor that the ex-husband, and not she, should have to pay the taxes. She got her modification.
On appeal, the MSSC reversed and rendered. The opinion pointed out that the applicable tax law had been in effect at the time of the divorce, so the situation did not constitute a material change in circumstances. The court also held that ignorance of the law, and particularly in this case tax law, is not a reason to modify.
I do not know what happened to the attorney who did not advise Mrs. Ivison. I hope he or she had enough malpractice insurance coverage to weather the storm. This was truly a case where what you don’t know can indeed hurt you. And to put it even more pointedly: What your client does not know that you should have advised her about can indeed hurt you.
FIVE MORE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS
June 21, 2011 § 3 Comments
- Sometimes the parties want the property settlement part of the PSA to be a final, binding contract regardless whether there is any contest. If you don’t include that provision unequivocally stated, the law is clear that the court can not enforce the contract piecemeal.
- If a payment is to be made, such as child support, specify the first payment date and the regular monthly date for payment.
- If something is to be done, specify the date by which it is to be done. In the alternative, include a stock provision in all your PSA’s to the effect that “If no specific date is stated by which an action in this Agreement is to be accomplished then it shall be done and completed not later than thirty days from the date of this agreement.
- If something is to be done, specify whose responsibility it is to do it. For instance, the provision that “All child support payments due hereunder shall be made pursuant to the Bank Plan,” was held by Judge Mason not to be clear enough that it was the payor’s responsibility to enroll in and make payments under the plan where he had been unrepresented in the divorce. Better to say something like “Husband shall be solely responsible to do all acts and things necessary to enroll in and make all child support payments due on and after August 11, 2011, through the Bank Payment Plan.”
- Section 71(b)(1)(B) of the Internal Revenue Code allows the parties to agree that alimony will be neither taxable nor deductible.
HIDDEN COSTS OF DIVORCE
June 13, 2011 § 4 Comments
John and Marsha have decided that they are tired of living in their own, personal soap opera, and they have agreed to an irreconcilable differences divorce. It looks pretty simple:
Marsha will get the former marital residence. It’s paid for and Marsha intends to stay there. The house sustained some damage in a wind storm a couple of years ago, and the parties got $10,000 for repairs from insurance, but they spent it on a Hawaiian vacation, with a few days in Vegas on the way out, in an unsuccessful attempt at refreshing their marriage. Marsha says she can get the repairs done or not because they don’t affect its habitability. The roof needs replacing, but it’s been patched and doesn’t leak. She says she’ll fix it if and when it leaks or when she sells the house, but she does not have the $6,000 it will cost right now.
The parties own two adjoining commercial lots worth about $15,000 each. Marsha has agreed to take the lot they purchased in John’s name in 1990 for $1,500 before Wal-Mart located down the street. John will get the jointly-titled lot they purchased for $12,500 several years ago. A car lot is expanding and has expressed an interest. Marsha would like to settle the divorce as soon as possible so as to cash in. Marsha owes $14,000 on her credit cards, and she’s behind in her payments, so she needs as much cash as she can get out of sale of the lot.
The parties will split the 1,000 shares of Wal-Mart stock that they accumulated through the years. Marsha really doesn’t know much about stock, so John has generously agreed to divide the shares.
Marsha has enjoyed driving the 2008 Jaguar that John bought her several years ago in an attempt to make up after she caught him in a questionable situation with a waitress from the Waffle House. The car is paid for, and Marsha loves it because she has never had a nice car before. She will get it in the divorce.
John has agreed to pay Marsha $1,000 a month in rehabilitative alimony for 36 months. Even with the alimony, it will be a tight squeeze financially for Marsha, so she doesn’t need any unpleasant financial surprises after the divorce is final.
Marsha is in a hurry. She wants you to do up the papers and she will pick them up to go over with John tomorrow, so she can get them filed right away.
It’ll be a snap to prep the PSA, and you are tempted to just hand the notes over to your secretary so they can be done while you hit the golf course.
Before you jump on this, though, ask yourself whether Marsha will really be getting what she thinks she is bargaining for. Consider:
- The divorce will be a transaction effecting a change of ownership in the former marital residence, triggering a re-rating of the homeowner’s insurance. Because the hurricane repairs have never been done and approved by the insurance company, Marsha’s homeowner’s insurance premium is likely to skyrocket. Not only that, but there are other factors that can adversely affect Marsha’s insurance premium, including her credit rating, which is questionable due to the credit cards. In order to get her homeowner’s insurance premium back with a reasonable range, she will have to spend that $6,000 on the roof and complete the other repairs. How can she find out in advance whether she will have a problem? Marsha can get a free insurance C.L.U.E. (Comprehensive Loss Underwriting Exchange) report by writing CLUE, Inc. Consumer Disclosure Center, P. O. Box 105295, Atlanta, GA, 30348-5295, or by calling 1-866-312-8076. An insurance agent can help her decipher the report. And, as you probably know, she can get a free credit report once a year.
- When the commercial lots are sold, Marsha will be paying capital gains taxes, currenty 15%, on $13,500. John will be paying capital gains on just $2,500. Marsha’s tax bite will be $2,025, leaving her $12,975. John’s taxes will be a mere $375, allowing him to pocket $14,625, or $1,650 more than Marsha.
- Also, has Marsha gotten a title opinion on the commercial lot titled in John’s name? It would be a bitter pill indeed to discover when she goes to sell it that John borrowed money against it without her knowledge.
- The stock has the same pitfall as the commercial lots. Stock purchased for $25 a share years ago will carry a much heftier capital gains burden than will the shares purchased for $65 a few years ago. Moreover, John can allocate himself the shares that have sustained losses in the recent downturn. Yet the parties are treating all the shares the same, and, to make it worse, John will call the shots.
- As for her ride, Marsha needs to look at it as a cash drain. How much is she willing to let it drain her? The insurance alone is more than $1,500 a year, and this year’s tag, which is now due, is $862. Not only that, it uses exclusively premium gas, and has never gotten the 21 miles to the gallon that the dealer promised. Yes, it is paid for, but would she do better selling it and taking the cash to buy something more economical? Can she even afford this car?
- Finally, the alimony is taxable income to Marsha unless the parties agree that it will not be taxable. John will not likely agree due to the fact that he will get to claim it as a deduction. Is Marsha aware of this? Can you negotiate an extra $300 or so a month for Marsha to use to pay her income taxes?
You can do the papers exactly as Marsha dictated, or you can sit her down and bring all these matters to her attention. It’s the difference between acting as Marsha’s clerk-typist and acting as her lawyer. You get to decide.
UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 5 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
MAKING SURE YOUR CLIENT GETS THE PROPER TAX TREATMENT OF ALIMONY
January 31, 2011 § Leave a comment
An important factor in determining whether to award alimony is the tax consequences of the court order. We all know that periodic alimony is income to the payee and deductible by the payer if it meets the IRS’s requirements.
So what does the IRS consider to be the essential ingredients of an alimony award, either by agreement or by adjudication? Section 71(b) of the Internal Revenue Code (IRC) provides that the following must apply:
- There must be cash payments to the recipient or third-party payments;
- Payments must be required by a written instrument;
- Instrument must not designate the payment as “not alimony” or as some other form of payment;
- The payer and payee must not be members of the same household;
- Payments may not be treated as child support;
- Payments must cease on death of the recipient;
- The parties may not file a joint tax return.
Payments that will not be treated as alimony by the IRS include: child support; noncash transfers; payments that are part of a spouse’s community property income; payments for use of property; and payments for maintainenance or upkeep of the payer’s property. Lump sum alimony, which is really an equalizing payment in equitable distribution, is not considered alimony by the IRS.
If you’re planning to use the form to prove the tax effects of alimony that I posted previously, you need to update it to conform to the latest version of IRC § 71(b).
It’s important to give some thought to these provisions regardless of which side you are on in an alimony dispute. If you represent the client trying to get some cash, you might consider proposing to the court or negotiating for it to be in the form of a property division; as such, it would not be considered income. Likewise, you can propose to the judge or negotiate for the payment to omit one of the ingredients above. If you represent the party who will have to pay, make sure you get all of the essential ingredients included so that your client’s payments will be deductible.
A CHECKLIST OF CHECKLISTS
December 15, 2010 § Leave a comment
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.
Here are the checklists I’ve posted (you can click on the links to get to them):
Modification of child support.
Periodic and rehabilitative alimony.
Income tax dependency exemption.
Those are all of the checklists of which I am aware. If you know of others, please let me know and I will add them to the list.
I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.
The Better Chancery Practice Blog 