Very often, people whose marriages haven’t failed perceive divorce exclusively as a process that other people go through, not themselves. So, it’s easy for them to dispassionately imagine how they would conduct themselves if served with a divorce complaint. We convince ourselves that we will be reasonable and civil, doing our best to remain amicable.
Then reality hits. The fundamental legal character of your spousal relationship has suddenly flipped. Instead of being a couple with common objectives, you’re now, as a matter of law, adversaries. Don’t misunderstand me. In a legal sense, “adversaries” are not necessarily “enemies”, there being many divorcing couples who remain cordial or even friendly. Nevertheless, your relationship does, in fact, change, and your former attitudes about your rights in the marital estate are very likely to change, too. Why? Because adversaries, unlike spouses, are not expected to trust the other.
Of course, disputes over child custody are, hands down, the roughest part of any divorce. But it would be a mistake to conclude that only custody fights make divorce actions stressful. Challenges as to the fairness of a proposed distribution of marital assets have kept many a litigant up at night. Still, you say to yourself:
“But fighting over possessions? No. That won’t happen to me. I’m not even materialistic. Besides, I only want what’s fair”
No matter how much you convince yourself that you only want what’s “fair”, all too often your divorcing spouse has a different conception (and emotional conviction) as to what a “fair” asset distribution entails. This is especially true when the estate includes sentimentally treasured pieces of art, antiques, and jewelry that you must keep within your side of the family. Nearly all marital estates contain at least one item whose liquidation sale would be unthinkable to one of the litigants. Time and time again, “fairness” and “reasonability” take a back seat to satisfying a deep emotional need to preserve a perceived family heritage or birthright.
All too often, one divorcing spouse takes advantage of the other’s naivete and professed disinterest in “material things”. In the months preceding an unannounced divorce, movable assets “coincidentally” tend to disappear, especially stored artworks, jewelry, luxury watches, and small antiques. Divorce defendants, who had guilelessly believed that nothing like this could ever happen to them, now find themselves forced to prove ownership and value of missing assets. Often, this is an impossible burden, but even in those cases where estate assets are recovered, the fees charged by private detectives and lawyers to accomplish this are often prohibitive.
The moral of the story? Choose an appraisal report, not a detective story. Let me explain.
Whether or not you currently feel that your marriage is in danger, it’s vital that you be proactive now in protecting the assets of the marital estate. You must retain the services of a USPAP-qualified appraiser to compile an exhaustive appraisal report of your art, antiques, jewelry, and other luxury assets now before they disappear. Such an appraisal report not only keeps everyone honest, but it also advances the interests of the marital estate against dissipation, casualty, loss, or theft regardless of cause. Even more to the point, everyone, whether married or not, ought to have an updated, inventory of their assets in the form of a written appraisal report for (1) procuring appropriate insurance and/or (2) estate planning. Thus, such inventories can be obtained without telegraphing fears about your marriage’s future.
As stated above, professional property appraisers should be retained to prepare a complete catalogue of your property that satisfies the legal requirements of a formal written appraisal report.
In order to be comprehensive, your appraisal report should include the following:
Authorizing Person: The identity of that person authorizing the catalog’s compilation must be stated;
Photography: Digital images of each item must be taken, so as to ascertain its identity;
Photographer’s Identity: The photographer’s name should be stated;
Identity of USPAP Appraiser: The identity and contact information of the professional personal property appraiser compiling the report must be stated. Said identification should contain the statement that the appraiser is federally qualified pursuant to the Uniform Standards of Professional Appraisal Practice (USPAP);
Operative Dates: The inventory must contain the following dates: the date of inspection; the effective date; the date(s) of research, and the date on which the report was finalized;
General location: The address where the asset was photographed or inspected. If you have artwork on consignment for sale or loan to a museum, gallery, or another exhibitor, its location and the name and contact information of the person or entity in possession should be provided;
Exact Situs: Where exactly is the property located? In which home? In which room? Etc.;
Detailed Written Property Description: All details materially relevant to establishing value must be stated. This can include, but is not limited to, artist name, title, date, medium, signature, dimensions, provenance, and condition;
Valuation Standard: The valuation standard used to establish value should be stated (e.g., marketable cash value, fair market value, retail replacement value, etc.);
Statements of Value: Valuations as to each item should be stated. A total valuation of all catalogued items should also be stated;
Assumptions, Conditions, and Hypotheticals: All extraordinary assumptions, limiting conditions, and hypotheticals used to ascertain value should be stated; and
Special Appraisal Information: All other information that a professional appraiser would be required to include in a formal written appraisal report.
Once compiled, the appraisal report should be stored by the appraiser for a minimum of five years or two years after the end of litigation, whichever is greater. The client’s copy should be stored in both print and electronic forms. Cloud storage is preferable in case of fire or theft to home-based electronic storage devices. Hopefully, you will never need it.