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In his divorce, New Haven, Conn., trusts and estates lawyer Marshal D. Gibson’s legal wizardry worked against him as much as his extramarital affairs did. Both cost him in the eyes of New Haven Superior Court Judge Richard P. Gilardi. In his ruling in the divorce last month, Gilardi concluded that Gibson’s affair with a married New York woman, and other extramarital liaisons with women on his boat, caused the marital breakdown. The judge also said he found Gibson’s estate planning methods “disturbing.” Gibson’s skill at minimizing taxable assets enabled him to shrink his marital estate, preventing his wife, Barbara G. Gibson, “from securing an interest or control over his assets in the event of death or divorce,” Gilardi wrote. The judge, in turn, rewarded the wife with generous alimony and pension plan settlements, and refused to recognize a harsh 28-year-old prenuptial agreement as patently unfair. UNUSUAL CLAUSE Gary I. Cohen, a $625-an-hour Greenwich, Conn., divorce lawyer, represented Marshal Gibson at trial. David Welch-Rubin, of New Haven’s Engelmann & Welch-Rubin, represented Barbara Gibson at a rate of $375 an hour. Gibson has retained New Haven appellate ace William F. Gallagher to challenge Gilardi’s decision on four grounds: invalidating the prenuptial agreement, refusing to assign a value to the wife’s family trusts, her alimony of $2,250 a week, and the decision to award her $1.2 million of his $2.3 million pension. In 1974, before they married, Marshal Gibson was earning $20,000 as a young lawyer, according to Gilardi’s decision. Barbara, then his fianc�e, earned $2,500 as a teacher, but had about $100,000 in family money. The couple signed a prenuptial agreement waiving any right to alimony, support or legal fees. They then bought a $76,000 house in Woodbridge, Conn., as equal tenants in common, and in 1981, bought a second home in Madison, Conn., for $135,000. Barbara Gibson spent $120,000 of inherited money renovating that property. The couple had a son in 1978 and a daughter in 1986. The year she was born, Marshal Gibson drafted a trust for their daughter containing an unusual clause. In the event of divorce, Barbara Gibson would be deemed to have automatically resigned as trustee. No such resignation-on-divorce clause applied to him. A conflicting sentence in the trust allowed her to resign and appoint a successor trustee. When the divorce began in 2001, she resigned and appointed her brother, a Texas lawyer named Richard Gutman, to be her successor. Invoking his resignation-on-divorce clause, Marshal Gibson appointed a different successor trustee. The couple had begun drifting apart by 1994. Marshal Gibson contends his actions at that point — which included transferring his one-half interest in the Woodbridge home to a 20-year qualified personal residence trust (QPRT) — were just estate planning. His ex-wife alleges it was crafty pre-divorce maneuvering. Marshal Gibson completed a similar QPRT transfer in 2000 with his half of the Madison property, naming the children as beneficiaries. Mrs. Gibson retained her half interest as a tenant in common in both houses. Both the Madison and Woodbridge QPRTs allowed the trustee to sell the one-half interest in either house before the 20 years was up, and create an annuity trust for Marshal Gibson, or simply give him the money outright. In August 2000, just before the divorce was initiated, Marshal Gibson took $475,000 from three of the children’s trusts and, with a $115,000 mortgage, bought a third home in Branford, Conn., where he now resides, in yet another QPRT with his son as beneficiary. UNEVEN ASSETS When Mr. Gibson moved to invoke the prenuptial agreement, the judge took into account the fact that, while the wife had no income, Gibson was earning $484,000 annually as a lawyer, and had $2.7 million in assets compared to his wife’s $776,413. Gilardi wrote, “it is the opinion of this court that the defendant’s estate planning tactics and the significant disparity in the parties’ assets, earnings and earning capacity are circumstances beyond what the parties contemplated when they signed the prenuptial agreement.” He ruled it invalid. Mr. Gibson also suffered a setback when the judge refused to divide any part of his wife’s one-third interest in two Gutman family trusts currently worth $3 million. They are both subject to the life interest of her father. The judge faulted Mr. Gibson’s legal team for not presenting any actuarial expert testimony. “The court cannot determine what value of the trust is attributable to the life estate and the remainder interest, respectively,” Gilardi wrote. That lapse, plus Marshal Gibson’s role in causing “the marriage breakdown and the absence of any [financial] contribution to the trusts” led the judge to rule him not entitled to any part of them. The husband’s estate planning expertise paid off in two trusts holding his parents’ New Haven and Palm Beach, Fla., homes in QPRT trusts. They were structured so the trustee had discretion to either pay the proceeds to Marshal Gibson, or allow them to grow for the benefit of the remainder beneficiaries, his children. As such, Gilardi ruled, they were a mere expectancy, beyond his legal power to distribute as marital property. Mrs. Gibson’s complaint said she was taken by surprise by the resignation-on-divorce clause in the 1986 trust for their daughter. “It was buried,” her lawyer, Welch-Rubin, said. “She should have had independent counsel. Nobody I’ve talked to has ever heard of such a provision. It’s totally self-serving for the lawyer, and against her interests.” He added, “These were all fine estate planning tools — if they were used for the family benefit. But once he started using them for his purposes, against his wife, he was clearly misusing his position. It’s a lesson to be learned that wives should have independent legal advice when they sign an important document and their husband is a lawyer.” Cohen referred questions to Gallagher, who is handling the appeal and noted, “The marriage hasn’t always been broken down. They made these legal [estate planning] decisions as husband and wife.”

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