NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Connecticut seems to be the hotbed of celebrity divorces these days. 

Yesterday's news reported that model Stephanie Seymour will have to make due on $270,000 per month in temporary support while her case is pending.  The news accounts report that her husband nets $1.5 million per month making this appear to be a veritable drop in the bucket.

Today's new reports that sportscaster Jim Nantz has to pay his wife $72,000 per month in permanent alimony plus $1,000 per week in child support.  This is a substantial amount if his income is $3.2 million as noted in one place but not so much if his income is $7 million as reported in other places. 

Aside from a look into the lives of the rich and famous, this shows another thing - that is, divorce can be a very public airing of very private matters.  While perhaps it may be more noteworthy for celebrities, even much of regular people's divorce can become part of the public record.  While it is not possible to completely avoid this, treating each other in a dignified and fair manner and settling issues is a way to help keep things out of the public record. 

• Email This
• Print
• Trackbacks

We have blogged in the past about parental alienation and "Parental Alienation Syndrome."  There was an excellent article in US News and World Report on line posted on October 29, 2009.  To read the article, click here.  To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.  The new edition is scheduled to be published in 2012. 

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness.  On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.  The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

• Email This
• Print
• Trackbacks

We have blogged many times about cases dealing with motions for reductions of child support and alimony.  Obviously, that has been a hot topic given the economic downturn that our country has experienced over the last year or so.  Another interesting unreported (non-precedential) case was released on November 2, 2009.

That case was Miele v. Miele.  In this case, the parties divorced in 2005.  In their Agreement, the husband's support was based upon anticipated gross income of $165,000 per year.  The reason for this was because he involuntarily changed employment in 2005.   In 2004 he earned more than $331,000.  Because of these circumstances, the parties agreement required them to exchange W-2 and 1099 forms for 2006, 2007 2008.

The husband's post divorce income did not approach even the $165,000 level.  As a result, he made a motion to reduce his alimony in 2007 which was denied.   He filed another motion in 2008 which also was denied.  This time, he appealed. 

The Appellate Division reversed.  The Appellate Court found that the parties agreement recognized that there was an involuntary reduction in income and that the $165,000 number was a projection of future income that did not come to fruition.  Given that the husband had shown two, if not three straight years of income that was substantially below the anticipated gross income, he was entitled to, at the very least, entitled to a hearing. 

This case is instructive because I would anticipate that many current divorces will be faced with a similar situation of someone who lost their job and their new income is speculative.  The parties should attempt to include protections in the agreement that take into account that the income could go back to historical levels, as well as what should happen if it does not. 

• Email This
• Print
• Trackbacks

As is widely known, the filing date of the complaint for divorce which actually leads to a divorce is the “cutoff date” for equitable distribution, that is, assets acquired up to that date are generally subject to equitable distribution, and assets acquired after that date are generally not. This is a general rule and cannot be taken as a total brightline test since there are no notable exceptions. Among these are: (1) assets acquired by way of gift or inheritance or intestate succession (death without a will) not from a spouse; (2) assets acquired with other assets which were either from a third party as in the first example of acquired by one party prior to the marriage. An exception to the cutoff date would be an asset acquired by one party after the cutoff date but with assets which were subject to equitable distribution. Again, these are general rules and there are always exceptions or other fact situations which render a general rule inapplicable. Obviously, it is best to consult qualified counsel since each circumstance is fact-sensitive, and the result usually turns on very specific development of the facts.

One exception to the timing of “cutoff date” rule is advantageous to the parties. Say that (for one reason or another) the parties are cooperative and want to attempt to negotiate an agreement before filing for divorce. Their hope is that they can amicable provide the other, through counsel, with sufficient documentary information upon which to adequately understand their financial circumstances and based on that understanding, negotiate an agreement, in which case, they can then file for divorce and obtain an uncontested termination of their marriage within a few weeks. Using this methodology, they can avoid certain judicial systemic entanglements.

• Email This
• Print
• Trackbacks

I have heard on more than one occasion from a client that their spouse or ex-spouse isn't earning nearly as much income as he/she may be capable of earning.  This statement is often made in the face of an alimony or child support calculation.  What happens if this is in fact true?

During the divorce process one of the more common ways to determine how much income a spouse can earn is to have them evaluated by an employability expert.  Now if you look up "employability expert" as a qualified profession or a course of study available in a college course book, I doubt that you would find it in there.  Like many other things, employability experts arose out of a need in the legal profession to have an individual with the proper experience, knowledge and background meet with an individual and assess their skill set to determine what kind of employment they may be eligible to obtain. Viola- a new niche profession is born!

So what about after a divorce is finalized and an ex-spouse is either unemployed (because of the economy, the job market or they simply refuse to work) or is underemployed (earning less than they had previously earned either by choice or no fault of their own) and a support obligation exists?  What does the court then rely upon when addressing the recalculation of a support award?

• Email This
• Print
• Trackbacks

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Custody Evaluation". To read the post, click here.

I have previously blogged on this topic, as well.  To review my prior post on How to Prepare for a Custody Evaluation, click here.

Though Mark is in Pennsylvania, much of what he says would apply in NJ too.  However, while he says that the evaluations typically cost between $5,000 and $7,500, while that is not an uncommon "retainer" for an evaluation in New Jersey, it is rare that the costs do not exceed the retainer, and that is just for the report.  It does not include fees for testimony at trial or a deposition. 

However, in New Jersey, I think that typically, judge's do find the reports useful, especially if the expert is a joint or court appointed expert.  That said, a judge is required to make independent fact findings and cannot simply defer to and/or abdicate judicial responsibility to the expert.  There are times that you have to fight the deference to the expert.  In those cases, you may need to get your own expert.  Given best practices,  judges do not always allow you to get a new expert if the expert is a joint expert.  If it is a court appointed expert, a party has a right to get their own expert.

At Fox Rothschild, our family law group is capable of handling the most complex and/or contentious custody litigation.  I have also previously blogged on the new American Psychological Association Guidelines for custody evaluations.  To review that post, click here.  Similarly, I have blogged on other "experts" for custody/parenting issues in high conflict divorces.  To review that post, click here. 

• Email This
• Print
• Trackbacks

At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted. 

In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal-- even if you are the plaintiff or the victim-- does not automatically warrant a dismissal of the Restraining Order. 

If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.

If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.

Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.

• Email This
• Print
• Trackbacks

There are numerous criminal acts addressed within the Prevention of Domestic Violence Act, which,if proven,can form the basis for the entry of a domestic violence restraining order.The crime of harassment  is one.  It is defined by New Jersey law as being committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person."  The person must have a "conscious objective" to harass the victim.

Actually proving a purpose to harass, however, can be harder than it seems.  For instance, I recently tried a Final Restraining Order hearing where the husband/alleged abuser admitted to calling his wife dozens of times after she had fled the home and he had obtained a bogus temporary restraining order against her.  His defense?  I was just trying to "get her back because I love her."  Despite the Prevention of Domestic Violence Act requiring a broad interpretation of its terms to protect victims, the trial court dissolved the wife's TRO against the husband, finding that the husband lacked a purpose to harass despite admitting to everything that she alleged.  This despite an also undisputed prior history of domestic violence.

It was this oftentimes difficult "purpose" requirement that was recently addressed by the Appellate Division in R.P. v. Somerset, where the Appellate Division reversed a trial court's implementation of a Final Restraining Order because of a misinterpretation of the law.  The trial court held that a specific intent to harass was not necessary in proving that harassment occurred.  The Appellate Division disagreed and reversed, finding that the "purpose" is an integral part of proving a harassment claim.  In its conclusion, it also found that there was no evidence of a purpose in the case at issue, especially in light of a lack of prior domestic violence by the alleged abuser.  This despite the fact that the primary incident involved the alleged abuser/ex-girlfriend showing up at the ex-boyfriend's home when he arrived with his new girlfriend, pulling the new girlfriend from the car and assaulting her. 

Purpose is critical.  So is filling out a domestic violence complaint with as much relevant detail as possible.  Any victim will surely be grilled on the contents of the complaint, especially if there is anything missing or contradictory from testimony given.  Including details as to current and past incidents is of great importance.  Also, considering how difficult it may be to prove harassment, it is also recommended to check off a claim for harassment on the complaint form, as well as any other claim that may be proven by your facts, such as stalking, assault, terroristic threats, etc. 

• Email This
• Print
• Trackbacks

We've all read the salacious gossip at the local food store news stand when popular celebrities bear children out of wedlock or famous couples battle it out in a nasty divorce and heartless allegations fly.  Even in those widely publicized cases, it can be an uncomfortable and awkward situation for any parent to question the paternity of a child.  I will admit that in my experience it is not a common occurrence for a parent to question the paternity of a child.  That's not to say it doesn't happen.  What happens when that question arises?

In NJ and many other states there's a presumption that the name listed on a birth certificate is the father of a child.  There is also a presumption that a father who assumes paternity by allowing their name to be listed as the father on a birth certificate along with participating in the upbringing of the child, making financial contributions for the child and representing himself to the public as the child's father is that child's father, whether DNA says so or not.  These cases are factually sensitive and depend upon a number of factors for consideration, such as:

-When paternity is questioned?

-Who is questioning paternity?

-Is there another man submitting himself as the biological father of the child?

-Does the mother know who the biological father is?

These are just a few factors to consider.  Recently, the Appellate Division, in the unpublished decision of Qian v. Wang, A-1873-08T1, decided October 14, 2009 addressed this issue.

In Qian, the parties had been married for 13 years before the father questioned paternity of the parties' only child in the midst of their divorce.  After DNA testing, there was no dispute that the child was not the biological child of the father.  The mother testified at trial that she believed the father was the biological parent of the child until the DNA tests revealed otherwise.  The trial judge found this testimony to be credible.  Also at trial, the father testified that at the child's birth, he had suspicions about paternity but did nothing to pursue those suspicions.

• Email This
• Print
• Trackbacks