In this time of collaborative divorce and mediated settlements, do divorcing parties during the pandemic still go to trial? Unfortunately, in high conflict cases where both parties “just want the house” and cannot reach agreement, the answer is frequently “yes.”
Let’s look at an example: Maria and Isaac are divorcing and both want the family home. They can each afford payment for the home on their own. She is a doctor with a successful practice. He works for a tech company and is able to work from home for the indefinite future. They separated in May of 2020 and the pandemic has slowed down resolution of their divorce, but now they are set for a Zoom trial. They share 50/50 custody of their three children, ages 8, 10 and 14. They have been “nesting” during their residential time while the kids attend virtual school, and they live in one of the best districts in the City. Their neighborhood is ethnically diverse which is important to both Maria as she is a first-generation American.
You represent Maria and are preparing her for trial after several failed attempts to settle this case. Maria is clear on the fact that if she does not get the house then it must be sold. This is nonnegotiable—there is no way she will allow Isaac to get the house. He had an affair with a woman who is now his serious girlfriend and she never wants the girlfriend to live in “her” home. You explain that because both Maria and Isaac can both afford the house, and either can refinance, this is not a case where the court will direct a sale of the family home. The Court will award it to either Maria or Isaac. How do you prepare Maria for a virual trial?
1. Prepare your Evidence to Show the House is Affordable
- Obtain an appraisal and if you are in a “hot” market then get the appraised value updated. Try to use a SRA appraiser. SRA stands for Senior Residential Appraiser, and is a designation conferred by the Appraisal Institute. A market analysis by a local real estate agent is not the best for of appraisal in divorce.
- Do not rely on Zillow and Redfin. Ms. Zillow is not going to show up at trial to testify.
- Mortgage statements will show the current balances due and monthly payment.
- Property tax statements will show the actual taxes due.
- Include an itemized list of monthly house expenses.
- If your client has a separate property interest in the family home, depending on the size of the lien, the separate property interest could determine who gets the house. Determination of the lien will be based on the documents and the strength of the paperwork to support the claim.
- Be sure to provide a letter from a lender showing prequalification.
- Paystubs will show that income will support the home payments.
- Include documentation of other marital assets to show that your client can afford to purchase the other party’s interest in the house.
- Prepare the quit claim and transfer deed for trial, or have a real estate attorney prepare the transfer documents so that they are ready to sign.
2. Prepare your Evidence to Support your Theme. (Stability for the Spouse and the Children.)
- Include a few pictures of the home to “show” at the trial so that your client can explain why it should be awarded to them (Gardening? Cooking? Home maintenance that they manage?)
- Provide information on the local school and your client’s past (and current) involvement.
- Show the children’s workspaces for virtual school.
- Educate the Court about your client’s role in the local community. For example, have they hosted the annual neighborhood holiday party? Attended “Neighborhood Watch” meetings? Joined a neighborhood book club?
- Discuss family ties if other family members live nearby.
3. Prepare your Witnesses for Trial
- You (or the Court) will be sharing the screen to show your exhibits. The exhibits should be organized and easy to access. By now, family law attorneys should have experience presenting exhibits during virtual trials. The exhibits should be organized and easy to access. Practice makes perfect, so run through the “sharing” of documents with your client ahead of time.
- Test your client’s internet connection and background, using the videoconferencing platform used by the Court before the trial. Some judges will be very patient if technical problems arise, but others may not be so understanding.
- Practice with your client by videoconference ahead of time, so that their testimony is clear, to the point, and not accusatory or hostile. Review the trial exhibits with the Share feature.
- Be prepared to have the appraiser and a home loan officer testify. Make sure they are in the videoconference waiting room early.
- If your client has a separate property lien, then they should be prepared to testify and methodically walk through the records that support it. If your client is not a strong witness, then retain a forensic CPA who can provide the tracing to support the claim.
- Credibility is key. The sincerity of each parties’ request will be weighed by the court, which is made more difficult by remote testimony. Your client should be prepared to look at the screen.
- Finally, prepare your client for a bidding war at trial. The other side may testify that they will pay more than the appraised value in order to keep the home. Be prepared for this tactic.
As with everything in life—and especially in litigation—there are no guarantees. Hopefully with this preparation, you and your client will present a compelling story for why she should be able to retain the house.