It is important to understand that generally, all assets owned by one or both of the spouses, in any form, are part of the marital estate. That means that an individual bank account, held in the Husband’s or Wife’s name only, is subject to division. That’s true whether the spouse owns the business as an individual, jointly with other partners, or as an S Corporation for tax purposes.

Dividing a business fairly: Start with accurate valuation

When business ownership is involved, it is critical that you be represented by an experienced attorney that is familiar with the valuation of businesses in the context of division of the marital estate. This can be a complex process and it often includes the retention of business or accounting experts. The value of a business is not easily determined from its annual income for tax purposes, profit and loss statements, or the amount of money that is currently in the business checking account. And, even if the other spouse has no interest in partial ownership or control of the business in the future, the value of that business should be accounted for in the Divorce. An attorney can coordinate a deal where one spouse buys out the other’s share of the business, or other assets can be divided to make up for the equity amount of the business.

As with any valuation issue under the law, there is often no black and white answer regarding business valuation. Different accounting theories, or approaches, may be relevant depending upon the particular facts applicable to the specific business involved. While the majority of cases in Massachusetts have employed an “income approach” to valuation, there are other ways to creatively tackle the matter. In addition, one or more discounts to the business value might be applicable when the business is small, when only a minority share of a business is owned, or when the application of particular skills of the spouse/owner are central to effective operation of the business. Knowledge of which valuation method should be applied, and understanding of the legal precedent for applications of discounts regarding business valuation are critical.

At O’Connor and Ryan we have handled complex Divorce cases where our clients, or their spouses, have owned businesses that are subject to valuation; and where the business values were accounted for in the overall division of the marital estate. We have worked with some of the foremost experts in the Commonwealth regarding business valuations, and have fought against business valuations that did not measure up to appropriate legal and accounting standards. If you may be involved in a Divorce that involves complex financial issues, and the valuation and accounting for equity in a marital business, please contact us, so that your rights and interest will be fully protected.

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A fact finding mission. The party being questioned is required to answer any question posed by the attorney that may lead to the discovery of admissible evidence. This is a very broad category regarding admissible questions, and, assuming they’re properly served with a Subpoena, if necessary, the witness is required to answer. Thus, even reluctant witnesses that may not want to get involved can be compelled to answer and to testify regarding their knowledge of the events at issue. (The attorney also gets the opportunity to observe and evaluate the demeanor of the witness, i.e. does the witness seem to be telling the truth, or do they appear to be overly nervous and evasive, based on their appearance while testifying.

To provide predictability regarding Trial testimony. The Deposition Transcript will be in the possession of the attorney if and when the case proceeds to Trial. Assuming that the attorney has asked the necessary questions in the Deposition, he or she can reasonably rely upon the witness giving the same testimony in court, at a Trial. If a witness to a car accident testifies at the Deposition that Party A ran a red light and struck Party B on July 1, 2018 at 2 PM, on a rainy day, the attorneys will reasonably expect the same testimony at Trial. If the witness at Trial testifies differently, he or she can be impeached with the Deposition testimony during cross-examination.

How the purpose of a Deposition is decided

The nature of a Deposition will depend on the type of underlying case that is before the court. For instance, in a Divorce proceeding involving a 20 year marriage, the Husband or Wife involved can be questioned regarding any and all events and issues that impacted the marriage during that entire period. In the case of the July 1st car accident noted above the testimony of the parties and or witnesses will focus on how the car accident occurred on that specific day.

In every case, the probability of winning or losing at Trial is often greatly affected by the Deposition testimony that preceded Trial, and the nature of any settlement of the case will often be determined. Thus, the Deposition(s) must be taken very seriously. Certainly if you are a party to the lawsuit, your attorney will want to meet with you before your Deposition to review the questions likely to be asked, your responses to the questions, and to discuss general rules you should follow in providing answers.

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You may have heard the term “pain and suffering” used in legal conversations, on television programs or by peers. This term is often used in discussions of

In general “pain and suffering” is just what it sounds like. It refers to the physical pain, and psychological and emotional suffering that a person often goes through when they’ve been injured in an accident. When that accident, and resulting injury, was caused by someone else’s negligent or wrongful conduct the law in Massachusetts allows you to recover damages for your “pain and suffering.”

It is useful to note that the amount of damages that you might be entitled to for “pain and suffering” is not subject to easy or specific calculation.

In injury cases the damages which a victim is entitled to recover are often divided into two categories:

• The first category is referred to as “special” damages, which can be objectively determined by mathematical calculation. It includes the amount of medical bills incurred for treatment of the injuries and lost earnings (including projected future medical expenses and lost earnings established by expert testimony).
• Pain and suffering can also be subjectively categorized by loss of enjoyment of life. The general nature and basis of this category is the attempt to make the injury victim whole for the suffering they have, and will endure due to the injury. There is no way to calculate these damages by a mathematical formula, although some insurance companies will attempt to do so applying their own, usually meager, formulas, i.e. “$500.00 per week for each week of ‘Total’ disability that resulted from the injury.

One significant benefit of the “subjective” nature of these damages is that it has led courts to the rule that because personal injury damages are subjective, and not subject to clear calculation, they are not taxable to the recipient. Thus an injury recovery will not be treated as taxable by the state or federal government

In fact, the courts have resisted this type of calculation of damages, and have usually prevented attorneys from suggesting “formulas’ to quantify these damages- “It would be fair to give my client $100.00 for each day she had to suffer pain due to her injury’”, will typically not be allowed by the court.

The result is that juries are generally allowed wide latitude in how they value “pain and suffering,” and the amount that they chose to award for damages. This means that hiring experienced attorneys that know the value of all elements of a damages claim, including fair treatment for “pain and suffering” is critical to your case. Most injury cases are negotiated to a settlement rather than going to Trial, but all insurers will base their settlement offer on the expected recovery range, if the case goes before a jury.

At O’Connor and Ryan, our attorneys have over 70 years combined legal experience, have extensive trial experience, and are fully prepared to maximize all aspects of the damages you are entitled to, including “pain and suffering.” We often receive full and fair settlement offers, without filing a lawsuit, because insurers are aware of our knowledge, experience and track record. However, if and when we need to go to court to secure a full and fair recovery for all aspects of your damages in an injury case, we are ready! Contact us for a free personal injury consultation today.

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