Valuation is the most underrated service in family law and usually is at the heart of all legal malpractice exposure. This is true whether it involves a benefit that later will be divided with a QDRO, real estate holdings, including the marital home, employer stock options or personal stock portfolios, and available income to pay support. Family Law attorneys often secure valuations only when the property in question is intended to be divided by trading it with other marital assets. This limited use for a valuation misses the critical need for one.
A valuation serves many purposes. First it organizes your entire case. It does this first by showing what is marital from non-marital property. Then it discloses what may be divided in half from what needs to be traded to accomplish a 50% division. A proper valuation can show the source of funds in the creation of the asset (providing a sneak peak into whether an unequal division may be possible). A proper valuation can also show which divisions produce income either maximizing the ability to pay support or minimizing the need and the amount that need be paid. As support and property are interrelated in so many important ways, the valuator must have full working knowledge of the statutes and case law that drive the valuation result. For valuations errors (including 401(k) plans) few experts understand read: Mishandled QDROs: The Armageddon of Family Law pp. 19 -28:
Too many attorneys allow the financial affidavit required in all cases to substitute for a valuation and only seek a valuation when the case fails to settle. This allows the non-owning spouse to decide what is marital from what is not and overlook whether the property can be divided or must be traded. If several loans were made during the marriage this converts any non-marital portion into entirely marital property. But the owner spouse can also be shortchanged when that person elected a survivor benefit for a pension and it wasn't valued. That is because it gives the entire benefit to the other spouse when it is marital property, meanings its value must be offset against the life only portion. There are dozens of issues like these that are routinely avoided because most "experts" aren't experts at all and most attorneys do not want to work hard for the client.
Not doing valuations maximizes the chances for maximum errors because either marital property will not be divided or that it will be divided when it really should not be.
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