NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Picture this scenario.  Parties are married - perhaps even happily - for 14  years.  They have three kids - 12, 10 and 6.  Wife has been a stay at home parent for the last 12 years. Husband is the Type A, master of the universe, over achiever type.  He works in New York City, leaving the house at 6 am and coming home at 7 p.m. The wife took the children to most of their medical and dental appointments, most of the play dates, most of the activities, attended most of the school events, etc.  Maybe the husband went to some, maybe he didn't.  Maybe the husband played his golf or tennis on the weekends - maybe he was part of the suburban shuttle taking the kids to the vast myriad of activities and sports kids are involved in - or both.  In very much of a traditional marriage, the wife was responsible for the kids and the house and the husband was responsible for making the money.  This is not meant to be a social commentary - just a description about how the parties divided the labor and defined their roles in the marriage. 

Fast forward - now the parties are getting a divorce.  A discussion of custody and parenting time has to be had.  One would be surprised about how many times I have seen the husband in these matters demanding 50-50 shared parenting with the kids, almost as if the historical status quo never happened. All too often, this demand is coupled with an attack on the wife's mental health and/or parenting abilities.  This of course leads to the obvious question - if she was so crazy/unstable/incompetent, etc. why did you leave the children in her care for the last X years?

This is not to say that shared parenting is presumptively not reasonable or in the children's best interests. But what is the genesis of the request.  Is it power, control, the desire to pay less child support, the desire to hurt the spouse for having the audacity to divorce them?  Is it a sincere belief that this is what is best for the children, whether it is or not?  Is it a combination of a realization of the time lost with the children in the past coupled with a fear of losing them completely?  Is it revisionist history and/or an exaggerated or grandiose belief regarding the person's actual involvement in the historical parenting of the children?  It is probably an amalgam of many of these things. 

The first question to ask is can the parent actually exercise the time that he is seeking?  If not, the resolution is easy.  Often in the cases, I have seen the parties go through stressful and expensive custody evaluations, with the obvious result - i.e. that the mother is recommended to be the primary custodial parent.  Custody then settles rapidly after that - with the father able to save face and say "I tried." 

That said, I have seen many parents become more involved parents after the divorce.  Maybe this was done for all of the wrong reasons.  Funny thing is that despite the reason, if their relationship with the children strengthens and their involvement increases, that may not be a bad thing either.

This blog is not meant to perpetuate stereotypes or dissuade good faith custody disputes. In fact, I have represented many fathers and have been successful in obtaining custody or shared parenting of some type for them.  On the other hand, before putting your children through a custody evaluation (or several if both parties get their own experts) and spending tens of thousands of dollars on the process, people should think long and hard about what they really want and what is really best for the children. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Following on the heels of an earlier blog entry this week addressing "alimony escalators" in the context of proving a change in circumstances meriting a decreased alimony obligation, a new unreported (not precedential) decision from the Appellate Division in the matter of Eick v. Eick, found that the husband had fulfilled his initial "changed circumstances" burden meriting the matter being sent back to the trial court for a plenary hearing on the issue. 

In Eick, the husband was a self-employed bookbinder who was obligated to pay permanent alimony to his former spouse pursuant to a February 2007 property settlement agreement in the amount of $1,500 per month, as well as $2,000 per month in child support for the parties' two younger children (a number agreed upon that went beyond the child support guidelines calculation).  Critically, the PSA established that such figures were based on an income of $117,000 for the husband and $29,000 for the defendant.  As an important aside, it is important in any settlement agreement to note what incomes were utilized to determine support so that a baseline figure exists should the issue arise in the future.

In March 2009, the payor husband filed a motion to reduce his support obligations based on an alleged change in circumstances - a claim that his business had "declined dramatically" due to online research tools utilized by many clients that rendered the need for his services substantially diminished.  He also claimed that his business had suffered due to the growth of imported bond printed material, as well as the general downturn in the economy. 

Interestingly, the former husband supported his application by submitting the report of an employability expert, who concluded that, while he could learn new skills, changing careers was not a realistic possibility after 27 years in the bookbinding business.  The report further concluded that his best option was to stay in his industry, anticipate a continued decrease in business volume, revenue and earnings, and consult with a career counselor or business consultant to determine available options.

In reversing and remanding the trial court's decision denying the husband's modification motion, the Appellate Division noted that not only had his income decreased, but that the wife's income had "significantly increased" - an undisputed fact set forth in the wife's Case Information Statement that the trial court failed to address.  The Appellate Division also concluded that the trial court failed to make sufficient findings as to whether the husband's decreased earning situation was of a permanent or temporary nature, since a temporary situation is not enough to merit a changed circumstances finding.  Even though the trial court noted that the bookbinding industry had undergone difficult times when the PSA was entered, the judge also noted that the situation was further "complicated" by the downward economy.  As a result, the trial court's denial of the husband's application was reversed and remanded for a plenary hearing.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Oftentimes, people seeking to modify downward their child support payment obligation will seek to do so as of the date that they allege the change in financial circumstances commenced, i.e., a loss of employment, suffering a disability, and the like.  To protect the existing "duty of support," however, New Jersey has a statute that expressly addresses the retroactive modification of child support payments.

N.J.S.A. 2A:17-56.23a clearly states:

                [n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of [N.J.S.A. 2A:17-56.23a], shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.  The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.

The law is, therefore, clear - retroactive implementation of a child support modification may only be made back to when the other party is put on written notice that a change of circumstances has occurred and a motion to address the issue will be filed within 45 days of such notice.  Where the motion is not timely filed within that 45-day period, the retroactive implementation may only be made back to the date when the motion is actually filed. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Recently, I was at a mediation where the mediator, when telling us his assessment of my client's case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense - but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level - what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party's relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party's confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Though you don't see them much anymore, some times Marital Settlement Agreement contained escalator clauses which, in effect, provided for automatic increases in alimony or child support.  Some times they were a fixed percentage per year. Other times they were tied to the cost of living/Consumer Price Index. 

In the unreported (non-precedential) case of Burroughs v. Burroughs released on August 9, 2010, the effects of a 5% annual increase on alimony escalator clause was at issue.  In this case, the agreed upon alimony was $200 per week and based upon the husband's income of $60,000 at the time (1994).  The husband had comparable income until the year 2000 when he could no longer find same and went to work at Home Depot earning about half of what he made in the past.  In 2006, the alimony was increased to $337 per week, not due to a change of circumstances, but rather, by implementation of the escalator clause.  As an example why not to use such an escalator clause this reflects a 68.5% increase in support in about 10 years.

The husband's income continued at the less than time of the divorce levels until about 2007, when he established a business with a friend to try to increase his income from what he was earning at Home Depot.  This was not a success.  He ultimately filed a motion to terminate or reduce his alimony.  The motion was denied.

The Appellate Division reversed holding that the husband had made a showing of a change of circumstances by virtue of his Social Security statement showing far lower wages post-2000 than his alimony was based upon.  The effect of the escalator clause was also impacted on the showing of a change of circumstances (though this is curious because it certainly is a foreseeable event.)

The matter was remanded for discovery and a plenary hearing.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In what could be the precursor to a long-awaited battle before the United States Supreme Court, a federal court in California today struck down as unconstitutional the controversial, voter-approved "Proposition 8" law banning same sex marriage.  Analysts of the 136-page opinion have suggested that it is so carefully and thoughtfully drafted that the Highest Court in the Land may find itself up against the wall should it seek to overturn its findings and conclusions in the future. 

The federal court judge found that Prop 8 essentially required discrimination in its implementation on the basis of both sex and sexual orientation with an enforced notion that "gays and lesbians are not as good as heterosexuals."  From a constitutional law standpoint, the law did not live up to even the most lenient "rational basis" test (i.e., the law is not rationally related to a legitimate state intertest) to pass muster under the Constitution's Equal Protection Clause. 

In what can only be described as the sort of monumental rhetoric that will likely be remembered for years to come, the opinion concluded in response to supporters of the law who argued that same-sex marriage violates the fundamental notions of marriage and procreation, "Tradition alone, however, cannot form the rational basis for a law."

Interesting, however, is that the same federal judge immediately stayed his own decision, pending appeals by supporters of the now unconstitutional law.

We will continue to update this blog as details unfold.  For an earlier blog entry on this topic, click here and here.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In the last several years, I have noticed a shift in the attitudes of judges and lawyers towards women who have spent a long term marriage working within the home raising a family. In New Jersey, there are thirteen factors which are considered when determining alimony, but our case law provides that two of the more important are lifestyle of the marriage and ability of the receiving spouse to contribute toward her (or his) own needs.  This second factor often involves obtaining an employability expert who opines on the issue after administering various objective testing and assessments to determine earning capacity, rather than having any real life information.

Ten years ago, a case in which the wife (or husband)  had been home for fifteen years raising the children and caring for the family would have been most often awarded permanent alimony and would not likely have been expected to return to work full time as the lifestyle of the marriage was such that she was a stay at home mom.    Lately, however, there appears to have been a significant shift in attitudes, particularly towards women, and in my recent experience, the emphasis has shifted to what the receiving spouse can earn, whether it be immediately, or with training in order to return to the work force with less attention to what the parties did during the long term marriage. 

As a society, and for a number of different reasons, we have moved away from a one income household to households in which both spouses are employed. But we still have many couples who, during their marriage made a decision that they wanted a parent home full time to care for the children. Depending on when the divorce occurs, this may result in a situation where the lifestyle has been that a spouse has spent decades out of the workforce. For women, particularly, the realities are such that it is difficult to return after such a long absence, regardless of what skills she may have. In fact, a recent article in the New York Times, as reported by MSNBC, (noted that women who have children still lag behind men and women without children.

Certainly, many, many women with children work full time including family lawyers ( this writer among them), and family court judges. And to some, that may be the new “normal.” But we have an obligation, as we practice, to make sure than in our advocacy as well as in our decision making, that we focus on the lifestyle of the marriage of the case, and not impose our own values on litigants.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We are nearing trial in a case where the value of a business is at issue.  While in many cases, my personal preference would be to have my own expert, as opposed to a joint expert, in this case, because of the nature of the business and for a few other reasons, including cost, we suggested using a joint expert. The other side refused as is there right.

That said, we insisted upon a simultaneous exchange of the expert reports.  My experience has been that when one party submits a report and the other side gets to reply, there tends to be a cherry picking of the subjective aspects of the report that the like or favor them, and then go either higher or lower, as the case may be depending upon who they are representing.  For instance, while that expert on their own may have come to a different reasonable compensation (replacement compensation) or capitalization rate, two of the subjective areas impacting a business valuation determination, if they have other report, you don't often don't see them going higher or lower as the case may be, if that would negatively impact the value that their client might prefer.  In another recent case, the adverse expert's report only noted in his report errors made by the other expert that reduced value - conveniently failing to point out the other errors that would increase value - something conceded when I took his deposition.

Getting back to this case I was speaking of above, a funny thing happened.  The business owner's expert's capitalization rate was lower than the non-business owner's expert (the lower the cap rate, the higher the value and vice versa).  In addition, one expert essentially double counted something, which can be easily corrected, and when it is, the expert's respective opinions should be reasonably close.  Now there are still certain subjective assumptions where the experts were not unexpectedly more or less than the other.  In the big picture, the change in value related to these adjustments are largely immaterial.

In short, the simultaneous exchange of the reports essentially kept both experts from going to far out on a limb.  This will hopefully lead to a fair resolution because the actual spread in their opinions is not that great.  Maybe that is the way it is supposed to be.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In January 2010, on his way out of office, Governor Corzine signed a bill requiring palimony agreements to be in writing.  We previously blogged on the enactment of that law.  The question that arose is whether the bill was prospective in nature or whether it applied retroactively.  At a seminar I attended in May, I heard a judge say that the policy at that time was to only allow cases to proceed if they had been filed before the enactment of the statute.  Conversely, even if the palimony promise had been made pre-statute, if the law suit was not filed, it would be dismissed.

As noted on the front page of the July 19, 2010 New Jersey Law Journal, there are several motions now pending in the Appellate Division, including one filed by this firm, addressing whether there should be retroactive application of the statute.  A judge in Atlantic County has held that the statute should be retroactively applied.  Judges in Monmouth and Somerset Counties came to the opposite conclusion.

When the issue is resolved one way or another, we will update this blog.

• Email This
• Print
• Comments
• Trackbacks
• Share Link