Justin O’Dell has been actively practicing law in Georgia since his admission to the bar in 2002. He founded O’Dell Hungerford Blanchard & Booth Attorneys in January 2013, based on a commitment to clients and community. The firm is now known as O’Dell Hungerford Blanchard & Booth. Mr. O’Dell has litigated bench and jury cases in the U.S. District Court, Northern District of Georgia, and in the various Superior, State, Probate and Juvenile Courts of Georgia. He has also appeared before local government Councils and Commissioners on various client matters.
Mr. O’Dell has a broad range of practice areas, including but not limited to business and civil litigation disputes, family law matters, probate litigation and property litigation. He has appeared in a variety of forums related to property title and use. Justin has also litigated consumer cases involving injury, wrongful foreclosure, wrongful eviction, breach of fiduciary duty and defective construction. He has also successfully represented residential and commercial property owners facing claims of eminent domain. Mr. O’Dell successfully handled the last three election disputes in Cobb County.
Justin O’Dell was raised on a small family farm in Southern Idaho. He attended Furman University, graduating in 1999 with a degree in Political Science. He attended law school at the University of Georgia and completed his Juris Doctorate, cum laude, in 2002. In addition to working on a farm, Mr. O’Dell worked as a summer seasonal wild land firefighter for the U.S. Department of Interior, Bureau of Land Management.
Since coming to Marietta, Mr. O’Dell has become ingrained in the local community through civic and nonprofit service. He serves and has served on various civic and non-profit boards and served as President of the Kiwanis Club of Marietta. Mr. O’Dell is an active member of the Cobb Chamber of Commerce and completed the Leadership Cobb program in 2007. Justin is active within the faith community as a member, Deacon, Trustee and Sunday School Instructor at First Baptist Church of Marietta. Justin has also translated his childhood growing up on a cattle farm into non-profit service by becoming a popular auctioneer for various local charity events including LiveSafe Resources, The Center for Family Resources, The Zone and the NAACP.
Mr. O’Dell’s work has been recognized in a variety of ways. In 2010, he was named one of the 20 Rising Stars Under 40 in Cobb County, Georgia. Also in 2010, Justin was recognized by the State Bar of Georgia with the Robert Benham Award for Community Service. In 2012, Georgia Power awarded him their annual Citizen Wherever We Serve Award. Super Lawyers selected him a Georgia Rising Star under 40 and then as a Georgia Super Lawyer starting in 2018. He has received recognition for outstanding service by the Marietta Kiwanis Club and the Cobb Collaborative. In 2015, he was given the Chairman’s Award by the Cobb Chamber of Commerce in recognition for his work in Co-Chairing the 2014 Countywide SPLOST referendum. He was also awarded the 2016 Next Generation Award by the Cobb Young Professionals division of the Cobb Chamber of Commerce. In 2019, he received the “Best of Cobb” recognition as the Best Overall Attorney, Best Individual Attorney, Best Civil Attorney and Best Domestic/Family Law Attorney. In 2020, 2021, 2022 and 2023 he was named again as the Best Overall Attorney, yielding only to other members of his firm in the remaining categories. In each year, the firm was named the Best Overall Law Firm in Cobb County and the attorneys of O’Dell Hungerford Blanchard & Booth were named the “Best” in all of the categories in which they were nominated.
He is married to Jenni with two children, Henry and Charlotte.
EMPLOYMENT
Attorney in the Law Firm of O’Dell Hungerford Blanchard & Booth, PC
PROFESSIONAL
ADMISSIONS:
Admitted to practice in all trial and appellate courts of the State of Georgia and in the U.S. District Court, Northern District of Georgia, 11th Circuit Court of Appeals
BAR MEMBERSHIPS:
American Bar Association 2002 – Present
Georgia Bar Association, Georgia Bar No. 549414 2002 – Present
Cobb County Bar Association 2002 – Present
Bylaws Revision Committee 2006 – 2007
Website Redevelopment Team 2007 – 2008
Chaplain 2023-2024
Board of Trustees 2010 – 2011,
2024-2025
PUBLICATIONS:
“Trouble Abroad: Microsoft’s Antitrust Problems Under the Law of the European Union” 30 Ga. J. Int’l and Comp. L. 101-139 (2001)
AWARDS/RECOGNITION:
Marietta Kiwanis Outstanding Leadership & Service 2009, 2010, 2011
Justice Robert Benham Award for Community Service 2010
Cobb Life 20 Rising Stars Under 40 2010
Georgia Power “Citizen Wherever We Serve” Award 2012
Super Lawyers Georgia Rising Stars 2013 – 2017
Superlawyers Georgia 2018 – Present
Chairman’s Award – Cobb Chamber 2015
Judge Juanita Stedman Celebrating Families Award 2015
Cobb Young Professionals Next Generation Award 2016
Cobb County Bar Association Richard L. Moore Award (Legal Aid) 2021
Best of Cobb
Best Overall Law Firm 2019 – 2024
Best Overall Attorney 2019 – 2024
Best Individual Attorney 2019
Best Divorce/Family Law Attorney 2019
Best Civil Attorney 2019
EDUCATION
University Of Georgia School Of Law
Juris Doctor, Cum Laude 2002
Awards: American Bankruptcy Institute Medal for Excellence in Bankruptcy
Activities: Student Bar Association
Journal of International and Comparative Law
Editorial Board 2002
Furman University
Bachelor Of Arts, Political Science 1999
Honors: Dean’s List
Activities: Sigma Chi Fraternity
COMMUNITY
Corporate Memberships/Partnerships
Cobb Chamber of Commerce 2003-Present
Community Service Recognition Award 2008
Board of Directors 2020 – 2024
Marietta Business Association 2007
Civic/Spiritual Affiliations
First Baptist Church of Marietta 2004 – Present
Sunday School Instructor 2006 – Present
Board of Deacons 2010 – Present
Membership Ministry Chair 2011 – 2012
Deacon Chair 2021 – 2022
Church Leadership Council 2013 – 2014, 2021-2022
Financial Oversight Committee 2011 – 2014
Committee Chair 2013 – 2014
Properties Committee 2005 – 2008
Committee Chair 2007 – 2008
Bylaws Revision Task Force 2006 – 2008, 2023
Church Parliamentarian 2015 – 2018,
2022-2023
Board of Trustees 2018-2022
Board Chair 2020-2021
Kiwanis Club of Marietta 2005 – Present
Club Secretary 2014-2015
Club President 2016-2017
Spiritual Aims Committee 2005
Sports and Social Committee 2005 – 2009
Committee Chair 2006 – 2007,
2007 –2008
2021-2022
Scholarship Committee 2006 – 2007
Membership Committee 2009 – 2010
Committee Co-Chair 2009 – 2010
Programs Committee 2009 – 2010,
2015 – 2016
Young Children Priority One Committee 2010 – 2011
Committee Co-Chair 2010 – 2011
Flag Committee 2006 – Present
Committee Co-Chair 2011 – 2014
2021 – 2022
Fundraising Committee 2013 – 2014
Board of Directors 2012 – 2018
Treasurer/Financial Officer 2013 – 2014
Georgia Kiwanis District
Training Instructor
Bylaws Revision Committee 2019-2021
Leadership Cobb 2006 – 2007
Leadership Cobb Alumni Association 2007 – Present
Public Safety Committee 2007 – 2008
Social Services Committee 2008 – 2010
Committee Chair 2010; 2017; 2021 – 2022
Cobb Youth Leadership/
Education Committee 2018-2019
Leadership Cobb Joint Program Committee Chair 2013 – 2014
Governing Board 2018 – 2019
Dunleith Homeowners Association
President 2006 – 2009
Cobb County Commissioner Richardson’s
Strategic Community Advisory Cabinet
Court’s Liaison 2021
Non-Profit
American Cancer Society
Swordsman’s Ball Committee 2009, 2013, 2014
Event Co-Chair 2014
American Heart Association/American Stroke Association
2015 N.W. Georgia Heart Walk Committee 2015 – 2016
Cobb Community Collaborative
Board of Directors 2007 – 2010
Business Advisory Council 2007 – 2010
Council Chair 2007 – 2009
Cobb County Diaper Day
Founding Committee & Committee Member 2009 – Present
Cobb Alcohol Task Force 2013 – 2015
Policy Council Chair 2013 – 2014
Cobb Housing, Inc.
Board of Directors 2006 – 2010
Marketing Committee 2006 – 2008
Bylaws Revision Chair 2008
Finance Committee 2008 – 2009
Must Ministries
Celebrating Stardom Event Committee 2010
Center for Family Resources
Annual Gala Committee & Auctioneer 2017 – 2024
Committee Chair 2023
Reconnecting Families, Inc. 2008 – 2016
Board of Directors 2008 – 2016
Fundraising & Development Committee 2008 – 2009
Vice-Chair/Chair Elect 2009 – 2010
Chairman of the Board 2011 – 2012
Governance Committee 2012 – 2013
Annual Fundraiser Co-Chair 2013
SPLOST/E-SPLOST Campaigns
Committee Member 2008, 2009, 2011, 2013
Co-Chairman, Secure Cobb’s Future 2014
PERSONAL
- Married to the former Jenni Kalil
- Self-employed as Interior Designer with JKO Design Group, Inc.
- Son, Henry Earl O’Dell, born May 25, 2008
- Daughter, Charlotte Jean O’Dell, born June 7, 2011
- Born in Reno, Nevada and raised in Shoshone, Idaho; eldest of three boys.
- Mother, Patricia, Retired Vice-Superintendent of Schools, Twin Falls School District, Twin Falls, Idaho
- Father, David, Retired.
REPORTED CASES:
- Vatacs Group, Inc. v. Homeside Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006)
- In re Fennell, 300 Ga. App. 878 (2009)
- Wills v. Arnett, 306 Ga. App. 503 (2010)
- In Re: Kauffman, 327 Ga. App. 900 (2014)
- Amah v. Whitefield, 331 Ga. App. 258 (2015)
- Sullivan v. Bunnell, 340 Ga. App. 283 (2017)
- Tselios v. Sarsour, 341 Ga. App. 471 (2017)
- SEC v. Torchia, Southerland, Duscio, et. al, 2019 WL 1911823 (11th Cir. Apr. 30, 2019)
- Reid v. Lindsey, 348 Ga. 425 (2019)
- Web IV, LLC v. Samples Constr., LLC, 349 Ga. App. 607, 607, 824 S.E.2d 107, 108 (2019)
- Morse v. Suntrust Bank, et al, 364 Ga. App. 571 (2022)
NOTABLE JURY RESULTS:
- Buckner v. Complete Wrecker Service, Eviction Services, Inc., Morris, Schneider and Prior, State Court of Dekalb County, (2007). Plaintiff’s verdict for wrongful eviction in excess of $200,000.00.
- Burleigh v. Shackelford, State Court of Cobb County (2006). Defendant verdict of only $65,451.17 against a Plaintiff’s request of in excess of $800,000.00.
- Weeks v. Huck, Superior Court of Cobb County (2011). Plaintiff’s verdict establishing a property line and award of $20,000.00 attorney’s fees.
- Lincoln v. Beaumont Tax Service, Superior Court of Cobb County (2011). Plaintiff’s verdict in excess of $150,000.00, plus award of punitive damages for breach of fiduciary duty and fraud and attorney’s fees arising from negligent tax services.
- Perry, Sexton v. Amah, Superior Court of Cobb County (2015). Verdict in excess of $140,000.00, including substantial attorney’s fees, for claims arising from trespass and nuisance over disputed easement rights.
- Ledbetter v. Baer, Superior Court of Cobb County (2018). Settlement mid-trial following exposure of false testimony and undisclosed material witness. Favorable boundary line determination for client, plus attorney’s fees.
- Gonzales v. Gonzales, Superior Court of Cobb County (2019). Verdict for client of lump sum alimony obligation only $32,000 against a claim of $450,000+. Preservation of separate assets of $900,000+.
- Nayyar v. Niloy, Inc. et al, Superior Court of Gwinnett County (2021). Successful defense against multimillion dollar breach of contract and fraud complaint, including verdict for Defendant on counterclaim.
- McCloud v. Ruskell, et. al. Superior Court of Cherokee County (2023). $535,000.00 legal malpractice verdict.
Notable Non-Jury Results:
- M. v. Dr. J., Superior Court of Cobb County (2006). Award in favor of Wife of $8000.00 per month in total support, over $80,000.00 in attorney’s fees and property settlement of approximately $500,000.00.
- D v. Ms. B, Superior Court of Cobb County (2007). Award of custody of infant to Father due to abandonment, alienation and erratic behavior of Mother.
- In RE: Mrs. B, Probate Court of Gilmer County (2007). Successful defense and prosecution involving Guardianship and Conservatorship of incapacitated Mother.
- B. v. Debt Collector, Settlement for bad faith and harassment in violation of FDCPA.
- Church v. Board of Elections, Superior Court of Cobb County (2008). Successfully obtained new election in race for Mayor of City of Kennesaw.
- PMC v. CII Global, Superior Court of Cobb County (2008). Defense of individual partner and prosecution of claims against other partners. Successful enforcement of settlement of dissolution of partnership in favor of client.
- Godwin v. Pearlberg, Superior Court of Cobb County (2009). Successful defense to a legal challenge to the eligibility of incumbent City Councilman for reelection before the County Board of Elections and appeal to the Superior Court.
- D. v. Mr. D., Superior Court of Cobb County (2010). Judges award of requested property division despite allegations of marital misconduct.
- Cardoza v. Wells Fargo, et. al. Superior Court of Cobb County (2010). Successfully set aside foreclosure and returned home to homeowner. Confidential settlement.
- D v. Mr. D, Superior Court of Cobb County (2011). Temporary award of substantial alimony, child support and attorney’s fees against high asset executive due to marital misconduct. Temporary award led to substantial settlement terms.
- Chemlink v. Christian, et. al, Superior Court of Cobb County (2011). Temporary restraining order, injunction and judgment against employee and third-party entities for violation of covenant not to compete, fraud, conversion of trade secrets and tortuous business practices.
- Martin v. Board of Elections, Superior Court of Cobb County (2012). Successfully set aside 2012 election referendum regarding Sunday Sales due to failure to comply with legislation and disenfranchisement of City voters.
- F v. Mr. F, Superior Court of Cobb County (2012). Successful divorce defense of high asset executive with compensation, stock options and deferred compensation against claims of spouse for multimillion dollar property award and request for $25,000/month in alimony.
- & Mrs. B v. Ms. G, Superior Court of Cherokee County (2012). Successfully defended a Mother against grandparents attempting to take custody away due to allegations of drug use.
- Bejdic v. Smitherman, Cobb County, Georgia (2013). Six figure settlement of automobile wreck involving compound fracture of spine against liability insurance and uninsured motorist insurance carriers.
- Cobb County School District v. Crawford, Cobb County, Georgia (2013). Successfully defended Principal against false allegation of failure to report. Following the case, the Head of Professional Standards and Ethics was non-renewed and the Lead Investigator resigned. The Cobb County School Board later proposed revised standards for conducting investigations.
- H. v. Fitness International, U.S. District Court, N.D. Georgia (2014). Successful settlement of claims involving sexual harassment.
- R v. Mrs. R., Superior Court of Paulding County, Georgia (2014). Successful custody case on behalf of a Father against stay at home Mother with issues of substance abuse and anger management.
- N. v. Mrs. N. Superior Court of Cobb County, Georgia (2015). Successful trial of case after multiple prior counsel failed to obtain relief. Award of custody to Father, along with support, award of 100% of business started by Father back to Father and recovery of fees.
- W v. Mrs. C & C. Family. Superior Courts of Gwinnett, Cobb and Paulding. Successful defense of ex-wife and family against multi-county litigation brought by former Husband found to be abusing steroids. Awards include substantial attorney’s fees in each jurisdiction.
- Anderson v. Fluid Management, (U.S. District Court, N.D. Georgia) (2016). Successful settlement of wage and hour claim, $160,000.00 for dispatch manager.
- In RE:W. (U.S. District Court, N.D. Georgia) (2016). Successful settlement of claims for pharmacy compounding negligence affecting minor child.
- P. v. Mrs. P. – Superior Court of Cobb County, Georgia (2017). Successful trial of case involving control of legacy family of business. Substantial asset award and six year alimony award to offset business interference and taking by Husband and Husband’s parents.
- Executive Parking v. Ace Parking, S. Phillips – Superior Court of Fulton County (2017). Injunction and award of full attorney’s fees incurred enforcing employee covenant not to compete and recovery of misappropriated corporate information.
- A v. Mrs. A. – Superior Court of Cherokee County, Georgia (2017). Custody award of toddler to Father due to demonstration of instability in Mother and Mother’s family.
- In RE: Paulding County Pipeline Property Acquisition and Construction Easements (2017). Condemnation defense resulting in award to client 11 times higher than first offer.
- Cary v. Cary – Superior Court of Cobb County (2018). Favorable custody award to Mother, plus support and alimony payments in excess of $15,000 per month and property division over $1 million. Award of attorney’s fees over $350,000.00.
- Price v. Walker, Burrell, Et. al, Cobb State Court (2018) – Confidential settlements with multiple defendants from injuries suffered in school parking lot.
- Tibbetts v. Galt – Superior Court of Fulton County (2019). Successful dissolution of business partnership, plus award of attorney’s fees.
- Morrell v. Presbyterian Village, State Court of Cobb County (2020). Confidential settlement of nursing home injuries.
- Cantrell v. Nationwide, Plemons Group, U.S. District Court (2020). Confidential settlement of workplace harassment claims in franchise.
- RE: Robert Bledsoe (2020). Confidential Settlement of wrongful death claims in trucking fatality.
- B v. Mrs. B. Superior Court of Cobb County (2021). Successful custody defense for Mother against multiple cases filed by Father.
- Tolbert ex rel BCT v. Ga Kyung Hee Tae Kwon Do, LLC, Superior Court of Gwinnett County (2021) Six figure settlement of claims of abuse occurring on premises
- Estate of Richard Best, Probate Court of Cobb County (2021 – 2022), Successful probate prosecution and recovery related to commingling and misuse of estate funds against Executor.
- Vogel v. Vogel. Superior Court of Cobb County (2022). Lifetime alimony award in favor of Wife in long term marriage and recovery of attorney’s fees.
- Dance 101 v. Regency Centers, Superior Court of Cobb County (2020-2023). Multiyear special master appointment for summary judgment and subsequent audit of common area maintenance and rent dispute.
- RE: Commissioner Jerica Richardson, Cobb County Board of Ethics (2023). Summary dismissal of ethics complaint against sitting Cobb County Commissioner, District 2.
- K. v. Mr. K. Superior Court of Cobb County (2023). High asset valuation and alimony award in favor of Wife on 10 year marriage.
Presentations & Writing:
- Technology in the Law Office: Helping Small Firms Complete, Digital Strategies to Keep up with the Big Boys (Georgia Association of Paralegals, October 29, 2010)
- Election Challenges in Georgia (2011)
- The Court System & You: A Primer for Clergy, Non-Profit Organizations and Churches (February 22, 2011, Cobb County Clergy)
- Facebook Meets Voir Dire: The Good, The Bad & The Ugly of Mining the Internet During Litigation (National Association of Legal Secretaries, May 17, 2011; Cobb County Legal Secretaries Association, October 26, 2012; Cobb County Bar Association Family Law Section, December 14, 2012, National Association of Legal Secretaries, July 17, 2014)
- Ethics for Litigators, National Business Institute (July 25, 2012)
- Dirty Litigation Tactics: Ethics & Professional Conduct, National Business Institute (February 13, 2013)
- When You or Your Business Partner Dies? Cobb County Bar Association, (February 2015)
- Probate Litigation Basics, National Business Institute (August 19, 2015)
- Estate and Trusts Contests, Disputes & Challenges, National Business Institute (August 18, 2016)
- Cross Examination of Valuation Experts, Cobb County Bar Association, (February 2018)
- Cobb Chamber – Younger Lawyers Section – Panel Discussion, (2019)
- Millennials – Exposing Popular Myths Affecting Organization (Multiple Dates)
- Cobb Chamber Webinar – Legal Issues Arising from COVID 19, (May 2020)
- Handling Illegally Obtained Evidence, Cobb County Bar Association (March 2023)
- Discovery: To Fight or Not to Fight, That is the Question, Cobb County Bar Association (March 2023).
- Advocacy At Trial, Advocacy Boot Camp. Cobb County Bar Association (October 2023).
- The Time Lie: Everything You Have Been Told About Time is False. Cobb County Younger Lawyers Division (September 2023); Marietta Kiwanis Club (January 2024)
INTRODUCTION
The Court (in what should be a simple enough question): “So tell me what we are having to decide today?”
Wife’s Attorney: “Well, your honor, we are here because the Husband has a mistress and has been spending money like a drunken sailor entertaining her and because the Wife is in the marital residence, which is not worth what they say because she has no money to make repairs and would incur sales costs if she had to sell it and because the Wife worked for years before the marriage and accumulated retirement before staying home to raise kids and he now has a business that is worth lots of money but he doesn’t think so and doesn’t want to share what she helped create and he has a brand new truck and she is still driving an old station wagon that her mother gave her and had to borrow money from her parents……
Husband’s Attorney (just as long of a response, but essentially): “Nuh – uh. We disagree with all that.
The Court: (Out loud) “Ok, well let’s call your first witness. (Internally) “Oh great. How am I gonna keep track of all these issues?
Enter “The Marital Balance Sheet”
The “marital balance sheet” is a term of disparate meaning and application. Courts and practitioners have, for years, attempted various ways and means of keeping track of the assets of a marriage or other case involving property division. Various forms and templates have been utilized even including a balance sheet of sorts in the Domestic Relations Financial Affidavit required by the Uniform Superior Court Rules.
The purpose of this presentation is to provide an overview of the “What, Who, Why and How” of a Marital Balance Sheet in order to provide the bench and with insight as to its utility and value and to provide a simple template version both for demonstration and take home use.
A. WHAT IS IT?
While there are any number of ways in which to keep track of the issues in a fact pattern like the one described above, the Excel based Marital Balance Sheet provides the Court with an all-in-one tool designed to keep up with the flow of evidence, adjust as it changes and render a complete decision.
The template is formula driven in that it allows a practitioner to insert information to the left:
And then make a division of the asset to the right (using a pre-built formula):
Such that at the bottom of all of the assets and debts, the net effect of the property division, including any amounts necessary to equalize the estate are available:
The user is also able to adjust and create scenarios within the template in order to “reverse engineer” a desired outcome.
B. WHO SHOULD USE IT & WHY?
- 1. Lawyers & Staff
The first, and probably most critical, use of the Marital Balance Sheet for the attorneys and their staff is one of organization. The process of discovery in a domestic case is rarely smooth and efficient. In the non-domestic arena, discovery is produced by the client to the lawyer in large tranches where it can be reviewed, logged, organized and then produced to opposing counsel in like fashion. In the domestic arena, documents are emailed sporadically, forwarded to Counsel, handed over at a mediation, produced in Court, produced just prior to Court and sometimes not produced at all. Compounding all of the foregoing is that discovery in a divorce case is truly never closed. Unlike virtually all other areas of litigation, the facts and circumstances of the case are always developing. A divorce can be filed with an asset snapshot in place, however, over the course of litigation those assets are used, sold, new assets bought and values change.
The Marital Balance Sheet provides the lawyers and staff with a means to keep up with this ever-changing set of data. Each time discovery comes in, the balance sheet is updated. If a new account is opened or discovered, a new line is added. If the house is sold and the proceeds placed in escrow, the sheet can be adjusted. With each new discovery batch, balances can be updated. The “Date” column allows the office to keep track of the most recent date for each account or asset from which the value of the asset was derived. In the case of a house, for example, it could be the appraisal date.
Creating and saving new Marital Balance Sheets also allows the attorney to present to the Court information about the changing nature of the case at trial. In our fact pattern in the introduction, the attorney can bring in a Marital Balance Sheet created early in the file to show that the Husband had $120,000.00 in a checking account when the case started but is down to only $8000.00 at trial because of all those trips with the new fling.
The process of updating the Marital Balance Sheet also allows the attorney to keep track of settlement offers, evaluate the same and advise the client. Each time a settlement offer is received, the lawyer can enter the information into the Marital Balance Sheet to display to the client the perspective of the offer. For example, if the parties have a dispute about the value of a business interest and an offer comes in which the Wife is being awarded the house, the lawyer can show the client “Hey, with this offer, even if we use our value for the business, it is still 48% of the Estate for you – not a bad compromise.” It is not uncommon to generate 4 – 5 balance sheets at mediation tracking each offer back and forth.
Lastly and doubly important, the Marital Balance Sheet helps organize and frame the issues for trial to the Court. In the course of preparation, the attorney and staff can go through the Marital Balance Sheet and verify that they have proven each item on it. If there is a disputed value on the house, is there an appraisal to be in evidence? If there is a separate property claim to retirement, how is it being documented? If the Court is being asked to add back money wasted away by one party, where is the documentation?
As trial arrives, the Marital Balance Sheet provides a simple and effective way to make an opening statement. While the clients want the opening statement to focus on the conduct, the fault and the blame, the lawyers are well aware that the Court is waiting for the “What do I have to divide and how do you want me to divide it?” portion of the introduction. Even better is the use of the Marital Balance Sheet to highlight for the Court precisely the areas the Court is going to need to decide. For example, the attorney can say:
“Judge, we agree that she is going to keep the house, but we disagree as to the value.”
“Judge, all parties agree that the retirement balances on my sheet are accurate and that they are going to be divided 50/50 by a QDRO from his 401k account.”
Judge, our balance sheet seeks to add back $40,000.00 in funds which the Husband took during the divorce case to spend on his mistress or pay back a ‘loan’ to his brother which we dispute was a valid debt.
By utilizing a Marital Balance Sheet, the attorney is able to quickly and efficiently get the Court the information it really wants to know and leave plenty of time to make the client happy by talking about all that bad behavior.
- The Court
The Marital Balance Sheet provides an important means by which the Court can determine values of property, visualize scenarios for the division of that property and, most importantly, avoid mistakes by omitting an asset or debt from division. Finally, the Court is also able to use the template to, in appropriate cases, shield the litigants from the thought process utilized by the Court in reaching a certain outcome.
Much in the same manner as an attorney organizes the file for Court, the Court can in turn organize the evidence into a Marital Balance Sheet, especially in cases where no such template is provided by Counsel. As the Court receives opening statements and an overview of the evidence, the Court can begin building the document (silently from the bench or in back-and-forth questioning with the attorneys). As items are stipulated as to the value, the Court can fill in that value and then highlight or mark those areas in dispute. Likewise, as each side reveals areas in which there is no dispute as to disposition, i.e. “we agree that the Husband is keeping the beach condo” the Court can complete the right hand side of the template and begin to determine what sort of delta is being created in equalizing the marital estate, or not.
As the trial unfolds, the Court is able to visualize scenarios for the division of the marital estate. For example, if the Husband is claiming that loan from his brother is a marital debt and the Court doubts it so, the Court can remove that item from the Marital Balance Sheet. Two of the more common problems created in a divorce are issues associated with trapped equity in a residence or high business valuations without sufficient cash to pay out the value promptly. In both scenarios, the Court can see the degree to which the Marital Balance Sheet has become lopsided in one direction or another and visualize the degree to which other assets need to be awarded to create some semblance of balance. The visualization may even result in a statement from the bench like:
“I know you both seem to agree that the Wife is staying in the house, but I am looking at the asset division and cannot seem to find how that is going to be possible. There is too much equity here and she doesn’t have the income or means to refinance and, even if she did, we would move from a 2.5% interest rate to a 7% interest rate and triple her mortgage payment and no one can afford that. So, the likelihood of this house being sold and the parties downsizing using their portion of the equity is pretty high.”
This visualization and reality check can often facilitate a conversation of settlement between the parties. If they are really committed to that house (for the benefit of the kids for example), they may realize that the two of them can craft a more nuanced and creative outcome for the situation than the Court is likely to entertain.
In making a final disposition of the case, the Marital Balance Sheet provides to the Court a final checklist to make sure nothing in the ruling was omitted or listed incorrectly. Both Judges and lawyers dread a scenario whereby the Court has crafted a ruling and attempted to balance equities and debts in a way that seems fair, only to have a party email back or chime in and say “Judge, you forgot about the rental property that no one really talked about this entire trial because of all the testimony about the Wife’s new boyfriend.”
Perhaps the more underappreciated benefit of a Marital Balance Sheet is the ability of the Court to hold back from the litigants some or most of the rationale behind a decision. In a case in which a number of issues are contested, say the value of a house, the value of a business, alimony and claimed frivolous expenditures of marital funds, there is nothing requiring the Court to make line by line rulings and determinations of value. The Court can simply award assets and then award (or not award) an equalizing payment. In cases where an alimony award may be appropriate but the Court wants to lessen the blow or eliminate the parties from further involvement with each other entirely, the Court can make an asset division that is 63/35 in favor of the party to whom alimony would have been awarded and then deny the alimony claim. Neither party has to know that the estate was divided other than 50/50.
C. How to Use?
- List the Basic Assets
In the template herewith, there are basic spots to list each asset by category (real property, accounts, retirement, etc…). Begin by entering the assets and debts as noted.
If a party has a separate property interest, the value would be split between the two columns (using the beach house as an example below, with a 50% separate interest).
Once the basic assets are listed, the Marital Balance Sheet provides additional blanks whereby the Court can include lines to add back expenditures during the case, include assets that the Court wishes to list, but not value, etc…
Above, the Court is leaving the motorcycle noted so as not to forget to award it, but not ascribing it any value. The Court has added back $20,000.00 to the marital estate based on Husband’s spending and is putting $15,000.00 of the Husband’s AMEX balance into the separate bucket as post-marital attorneys fees since leaving it in the marital estate column would effectively have Wife being responsible for half the balance. Note, if the AMEX did have some marital debt, that portion could still be listed in the column with the others.
- Begin to Award the Assets
To the right of the sheet, the Court can begin to make disposition of the various assets. In order for the spreadsheet to remain formula driven, it is important that the user does not type values in this section of the Marital Balance Sheet. If that were to occur, updating the balance on the left side would not result in an updated balance on the right side and to the bottom of the sheet.
Instead, the cell should direct back to the left side of the sheet wherein the value is contained. Each subsection should use “Autosum” for the entire section (not just the assets awarded, in case those change.
The retirement section is unique. Since retirement assets are not equivalent to other assets, the retirement section is designed to equalize within itself so that the overall retirement division winds up 50/50 and does not affect the remaining transfer of assets. Again, nothing is typed on the right side of the sheet, everything is by reference, formula and Autosum.
The formula essentially takes the total value of all retirement, calculates the midpoint, then subtracts the retirement accounts in Wife’s name already so as to figure the amount required from Husband’s 401k to result in an equal division and then automatically awards the Husband the rest. Note, the Court can (off to the right) quickly insert a calculation or formula to convert the amount of the award to the Wife (here $3750.00) as a percentage of the whole (here 37.5%) and use that award in the Final Decree so as to make the QDRO entry correct and subject to market forces pending the actual division.
- Finalize the Asset Award & Equalizing Payment
The last step in the process of the balance sheet is the lowest portion. The template is designed to indicate to the Court the total amounts of assets less debts awarded to each party and to illustrate the amount necessary to equalize the estate.
By default, the template is set up such that an equalizing transfer is necessary from the Husband to the Wife and the included formula is inserted accordingly. In the event that the net value to the Wife exceeds that of the Husband the “transfer to equalize estate cell” would simply display in the negative indicating that the funds need to move in the opposite direction.
Again, the foregoing is designed and presupposes that the Court is desirous of making a 50/50 split of the estate. This may not be the case. For any number of reasons, the Court may be satisfied with the assets as valued and as awarded and decline to make all or part of an equalizing transfer. The Court may also decide that the asset award is adequate but change the values assigned to each in order to adjust the transfer up or down.
CONCLUSION
In sum, the marital balance sheet provides a very useful tool for both lawyers and the Court. The marital balance sheet allows the lawyers to effectively managing a case and discovery. It allows the lawyers to organize and presenting a case for trial and allows the Court and the parties the ability to hone in on the areas which are in dispute and in need of resolution. The martial balance sheet provides a checklist for the presentation of evidence and entry of an order to avoid anything being inadvertently overlooked. Finally, it is a very useful tool in determining an equitable division of property, whether 50/50 or otherwise.
