BY J. LEE DREXLER
When an appraiser is retained to appraise tangible personal property (for example, fine arts, furniture, antiques, jewelry) in a divorce case, the people involved should know that if two appraisers are used (one for the wife and one for the husband), the values will be considerably different. Even assuming that both appraisers are experts with top notch qualifications, there is always some divergence on value. If two appraisers are used, there are two fees involved. Depending upon how extensive the tangible personal property is, using two appraisers may be very costly.
Appraisers must use “fair market value” for divorce purposes. This means “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of relevant facts.” This is not liquidation value. What should be used for value are tag sale and auction values.
However, because there is a fair amount of judgment involved, there can be a divergence in value of up to 25 to 30 percent. If two appraisers are used and the tangible personal property is of high value, 25 to 30 percent can be a considerable difference. Sometimes, if one of the appraisers has not done his or her job well, the difference between two appraisals of the same piece can be much more than 30 percent. As very few judges have any expertise in tangible personal property, they often require a third appraiser, thus tripling the fee, or they split the difference down the middle, guaranteeing that neither party to the divorce will be satisfied.
While going through this process, both attorneys will spend a great amount of time and both appraisers will need to go to court. If two appraisers are used and it becomes necessary to have them go to court, they usually are paid in advance as expert witnesses in order to hold the date. As court dates change very rapidly, it is often necessary to pay an appraiser to hold one or two days, even if only half a day is needed. The entire process will take many hours of time and unnecessary expense.
As an alternative to this costly and time consuming process, both attorneys and their clients may want to consider hiring a single, neutral appraiser. In most instances where a single appraiser is used, the parties and their counsel approve. But there is authority for a court to appoint a single appraiser and apportion the fee between the parties even over the objection of one of the parties. Zirinsky v. Zirinsky, 529 NYS2d 298 (App. Div., 1st Dept., 1988).
With a single appraiser, there will be one appraisal fee (not two or three) and a minimum of appraiser and attorney court time on the issue of the value of the tangible personal property.
Choosing an Appraiser
Regardless of the number of appraisers involved in the matter, however, the appraiser or appraisers should belong to at least one of the two most prestigious appraisal societies: The American Society of Appraisers (1 800 ASAValu) or The Appraisers Association of America (212889 5404). Both of these societies have stringent entrance requirements.
It is also advisable to make sure that the appraiser has many years of experience. At the American Society of Appraisers, the designation ASA means a senior member who has at least five years of experience. At the Appraisers Association of America, there are a series of steps one must go through to become a member. In all cases, the appraiser should have passed the ethics exam (USPAP) within the last five years.
In addition, it is important to get the appraiser’s qualifications, find out how many matrimonial appraisals he or she has done, and whether the appraiser has experience appraising the specific type of property involved. An individual with experience appraising paintings may have no experience appraising jewelry or oriental rugs. The appraiser should be asked if he or she has testified as an expert witness and also if he or she has ever been court appointed as a matrimonial appraiser. In a complex case involving items of substantial value, an appraiser with at least 15 years of experience should be employed.
If a single appraiser is being selected for both parties, the attorneys want to be sure that the judge and parties will approve the selection. The appraiser should have a professional manner and good people skills to get along in what can be a highly charged, emotional situation. Often the husband or wife is upset about a stranger examining his or her possessions and needs a professional and calming presence so that the job can be done easily and efficiently. It is also important to know how long it will take to receive an appraisal after the initial inspection. Efficient appraisers usually finish a report in two to three weeks. For others it can take much longer and perhaps delay an entire trial.
Understanding the Process
Many disputes can be avoided if the parties and their counsel understand the appraisal process. What most people do not realize is how much lower “fair market value” is than “replacement value” or the original price paid.
For example, a Georgian style mahogany desk, custom made with a special dark finish, a specific number of drawers and a specially tooled leather top might have been purchased for $8,000. These costs include the decorator’s fees, delivery charges and extra design costs. However, for matrimonial purposes, the appraiser must think in terms of what this desk will bring if it is sold at auction or tag sale. As the owners are not selling from a shop, the price can have nothing to do with what it originally cost. Also if the desk has some scratches or chips, as almost all furniture has after it has been used, it will bring dramatically less.
A desk like this in good condition might sell at tag sale or auction for $1,000 to $1,400. The appraiser for an impartial matrimonial appraisal should value it in the middle at $1,200, a great deal lower than the original price. If the desk is badly scratched and damaged it might not sell for more than $500. Although the personal property is often simply divided between the husband and wife and not sold, the appraiser must always think in terms of sales price. This is the only equitable way for the parties to divide the property.
If items of high value are being appraised, particularly paintings or sculptures, comparables are necessary. For each valuable Item, the appraiser needs to find an arms length sale (usually at auction) of a substantially similar (“comparable”) piece by the same artist. The comparable piece should be similar in size, condition, period and artistic quality.
It is here, in the selection of comparables, that the appraiser’s experience, skill and judgment come most into play. The appraiser should subscribe to Art Net, which is the best service for finding comparable paintings and sculptures sold at auction. On the Internet, Art Net will show all the recent paintings, sculptures or prints by a particular artist sold at auction describing the size, medium, date and place sold, pre auction estimated price and price achieved. It will, in most cases, also show a photo of the artwork. With this information, an experienced appraiser should have very good comparables and make an accurate appraisal.
In cases of art work by young artists whose works have not come up at auction, so that no comparables are available, the gallery that sold and hopefully still sells the work needs to be contacted. Assuming the gallery is willing to sell the work at a certain price, this price needs to be ascertained. After that, the commission the gallery charges needs to be discussed. In most cases it is 50 percent, so that a painting bought from a gallery two years ago for $10,000 might be valued at only $5,000 for matrimonial purposes. However, if the work was done so many years ago that no gallery is presently carrying the artist’s works, and his or her works have never come up at auction, the value might then be as little as 1/10th or 1/100th of the price paid. Such a piece will have only decorative value.
Surprises can also happen when appraisers evaluate antiques. Sometimes an antique that a couple bought for a great deal of money is not a true antique at all but rather a later reproduction, worth a fraction of what they paid for it.
While doing an appraisal several years ago, this appraiser examine a desk bought from one of the finest and best known antique shops in the world. The couple had paid $85,000 for a purportedly 17th Century boulle desk inlaid with tortoise shell and brass. It had a full provenance from a highly reputable and famous antique shop stating that it was 17th Century from the period of Louis XIV. In fact, the desk was a 19th Century reproduction only worth $30,000. Other appraisers were brought in to give second and third opinions and eventually the shop returned the $55,000 excess to the couple.
Of course, just the opposite can also happen. One couple getting divorced thought that a painting one of them bought a long time ago for $500 in Puerto Rico was of very little value. In fact, the painting was by a leading Puerto Rican artist, Angel Botello, and was worth $20,000. They were both surprised that his work had become so valuable and they were able to sell it at a Puerto Rican gallery that specialized in works by Botello.
In some cases the appraiser hired might need to call in a particular specialist for an esoteric item, such as a 7th Century Tang terra cotta horse or an Egyptian 4th Century B.C. sarcophagus. The attorney should check with the appraiser to make sure he or she has good contacts with many experts and knows how to get in touch with them quickly and at reasonable expense, if any.
Most appraisers charge a half day or full day fee for the on-site work depending upon the size of the collection and then, a separate charge for any necessary research. Some appraisers charge extra for preparing the report. Appraisers, of course, should never buy any of the items they themselves appraised in order to avoid any conflict of interest.
In most matrimonial cases, there are more than enough contentious issues. In order to minimize potential conflicts with respect to tangible personal property, attorneys and their clients should consider the many advantages of retaining one neutral expert appraiser.
J. Lee Drexler, ASA, AAA, is the president of Esquire Appraisals, Inc., located in Manhattan and Bedford, N.Y., appraisers of fine arts, furniture antiques and jewelry.
This article is reprinted with permission from the May 28th 2002 Asset Valuation Special Section of the New York Law Jounal, copywrite 2002. Further duplication without written permission is prohibited. All rights reserved.