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Appreciation in Separately Owned Home Values
It is apparent from our review of the cases in the last two issues that in the area of appreciated value of separately owned homes, a hard-and-fast “rule of law” does not currently exist. The murkiness inherent in the classification of the appreciation in separately owned marital residences as passive or active, and the spouses' respective direct and indirect contributions results in an ever-shifting, unpredictable landscape, and difficulty both in preparing a case for trial and in formulating and negotiating a settlement.
A Formulaic Approach
With the dual objective of creating certainty and enhancing the possibilities for settlement, we set forth herein a formulaic approach to the division and distribution of the appreciation in value of a separately owned residence (SOR). This approach addresses the competing concerns of preserving a separate property interest while recognizing the marital contributions. It essentially adopts the concept of proportionally distributing the appreciation between marital and separate property contributions (as in SM v. MM) and then adjusts that distribution with a factor corresponding to the length of the marriage. Our proposal is that this methodology provide the presumptive distribution of appreciation. However, in those cases where an unjust or inappropriate result is obtained (e.g., a long marriage with children where the marital residence is one spouse's separate property and no marital funds were applied thereto), the court would continue to determine the distribution based upon the merits of each such case.
The formula would unfold as shown in the Box below. The Nine-Step Formula is offered in the hope that certainty and clarity will remove some of the guesswork and speculation in this area as courts continue to grapple with the myriad concerns in an effort to do equity.
[IMGCAP(1)]
Marcy L. Wachtel, a member of this newsletter's Board of Editors, is a partner in the firm of Katsky, Korins, LLP. Lori K. Meyer is an attorney with the firm.
It is apparent from our review of the cases in the last two issues that in the area of appreciated value of separately owned homes, a hard-and-fast “rule of law” does not currently exist. The murkiness inherent in the classification of the appreciation in separately owned marital residences as passive or active, and the spouses' respective direct and indirect contributions results in an ever-shifting, unpredictable landscape, and difficulty both in preparing a case for trial and in formulating and negotiating a settlement.
A Formulaic Approach
With the dual objective of creating certainty and enhancing the possibilities for settlement, we set forth herein a formulaic approach to the division and distribution of the appreciation in value of a separately owned residence (SOR). This approach addresses the competing concerns of preserving a separate property interest while recognizing the marital contributions. It essentially adopts the concept of proportionally distributing the appreciation between marital and separate property contributions (as in SM v. MM) and then adjusts that distribution with a factor corresponding to the length of the marriage. Our proposal is that this methodology provide the presumptive distribution of appreciation. However, in those cases where an unjust or inappropriate result is obtained (e.g., a long marriage with children where the marital residence is one spouse's separate property and no marital funds were applied thereto), the court would continue to determine the distribution based upon the merits of each such case.
The formula would unfold as shown in the Box below. The Nine-Step Formula is offered in the hope that certainty and clarity will remove some of the guesswork and speculation in this area as courts continue to grapple with the myriad concerns in an effort to do equity.
[IMGCAP(1)]
Marcy L. Wachtel, a member of this newsletter's Board of Editors, is a partner in the firm of Katsky, Korins, LLP. Lori K. Meyer is an attorney with the firm.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.