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Pertinent Information As It Relates To New Jersey Family Laws

Staying Together for the Kids- Maybe not such a great idea

Posted in Custody, Divorce

Oftentimes clients say that they are waiting until after high school or college graduation to get a divorce so that the child or children do not have to experience a divorce.  A lofty goal in most cases in which at least one party is dreadfully unhappy. Yet as they say, the road to you know where is paved with good intentions and this may be another example.

Recently, I read a column in which the writer said that she was glad her parents split when she was a young teenager, and I was reminded of several studies that have come out over the years in which children who were interviewed said that they wish their parents had divorced before they actually did.

The fact of the matter is that kids are smarter and far more intuitive than we give them credit for.  They know far more than we want them to- don’t think for an instant that they don’t know that mom and dad are having marital problems.  And it scares them. Moreover, particularly pre-teens and teens feel as if they are caught in the middle.  When mom and dad are actively fighting on a regular basis, collateral damage can occur in the way of stress, poor schoolwork, and attention seeking behaviors.  We are finding out that kids would sometimes rather have a plan going forward rather than uncertainty, and ideally, have two happy households to go to rather than one miserable one.

Parents who are contemplating a divorce need to take the path which is best for them, which in turn may be best for the kids.  This answer is not the same for every person.  Waiting may be the best option, and it may not. Talking to a mental health professional who has experience with children of divorce can be instrumental in timing the decision

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state, including South Jersey. Jennifer can be reached at 609-895-6712 or jmillner@foxrothschild.com

BE CAREFUL WHAT YOU WISH FOR…BECAUSE YOU JUST MIGHT GET IT

Posted in Alimony, Child Support, Divorce, Interspousal Agreements, Modification, Practice Issues, Property Settlement Agreements

As a matter of public policy, New Jersey Courts favor the enforcement of agreements reached between parties. Since Marital Settlement Agreements (“MSA”) are entered into consensually and voluntarily, they are often approached with a predisposition in favor of their validity and enforceability.  That notwithstanding, these agreements are enforceable only if they are fair and equitable. A bedrock principle of New Jersey divorce jurisprudence is that parties may be able to modify support provisions within their divorce agreements if they are able to show a continuing change of circumstances.

Although the ability to modify agreements based on a change of circumstances is essentially the default so to speak, parties are free to contract around same. Often times in exchange for additional financial considerations, such as unequal asset division or a “discount” on alimony, parties will agree that the amount of years alimony is paid and/or the actual amount of alimony paid each year is non-modifiable regardless of a change of circumstances, foreseeable or otherwise.

Unfortunately all too often parties are entering into agreements that are “non-modifiable” without really thinking through the consequences of same in an effort to “get the deal done” only to have it come back to haunt them.  This is exactly what happened to Mr. Fiorenza in the recent unpublished (non-precedential) case of Fiorenza v. Fiorenza.

In Fiorenza, the parties were married for 24 years and had three children. At the time of their divorce, they were able to come to a resolution regarding the Husband’s alimony and child support payments and agreed that Husband would pay $100,000 per year in alimony ($8,333/per month) and $833.00 per month in child support. Shortly after the divorce however, Husband stopped paying support and Wife filed an application to enforce the support provisions of the parties’ divorce agreement.

The parties were able to resolve their differences and entered into a Consent Order, which lowered Husband’s total support obligation to $5,000 per month ($833.00 of which would be considered child support), included an escalation clause that support would go up if his income did and vacated $10,000 in support arrears.  The parties also agreed however that the new support amount would be non-modifiable and included that if there was a default on this new payment structure, that the total support amount would revert back the original amount under the parties initial MSA. Specifically, the parties agreed:

No matter defendant’s annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties’ youngest child] when the child support component may be reduced”.

After the entry of the Consent Order, Husband made the new support payments for a period of one year but then again stop paying altogether.  Wife immediately filed an application to enforce the terms of the Consent Order and asked that the initial amount of support be reinstated.  In response, Husband cross-moved for a reduction in alimony.

Both the trial Court and Appellate Court upheld the parties’ agreement and increased the support payment back to the original amount in the parties’ MSA (due to Husband’s default on the new support payments) noting that each party got the “expected benefit and burden of the contract”. Because of Husband’s current inability to pay the full support amount however, the Court set a reduced alimony and child support figure of $2,500 per month and allowed the difference between the MSA support award of $8,333 and the $2,500 to accrue as arrears.

The take away from this case is that you should think long and hard before you include any non-modifiable provision in your divorce agreements and consult with an experienced attorney to discuss the ramifications of same. Although you might feel you are getting a tangible benefit in the present by agreeing to a non-modifiable provision, it is important to think through all the circumstances that may occur in the future that would complicate your ability to comply with same (such as loss of income/employment) as you cannot expect a Court to simply invalidate the terms of your settlement agreement because you now view them as unfair with the benefit of hindsight.

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Lauren Koster Beaver is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Lauren practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, premarital agreements and Appellate Practice. You can reach Lauren at (609) 844-3027, or lbeaver@foxrothschild.com.

CAN A COURT GRANT A CHILD’S REQUEST TO HUG HER FATHER?

Posted in Custody, Visitation/Parenting Time

Despite my reputation to the contrary, sometimes I am a softy – especially when it comes to children.  Maybe it is due to my own experiences as a child of divorce.  Whatever the reason, I read a case today that was heartbreaking and uplifting at the same time.

The case, R.R. v. L.A.C., an unreported (so far because it seems like it was submitted for publication) decision written by Judge D’Alessandro in Hudson County, starts as follows: “This case concerns the Court’s authority to fulfill a Child’s request to hug and see her Father.” When I read that, I have to admit that I did a double take because on its face, it seems like this was not a legal issue at all (and maybe it really isn’t).

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The opinion goes on to address the marriage of people who for various reasons, never spent much time together during their marriage, both before or after the birth of their daughter, who is now in 8th grade.  As a result, the daughter was primarily, if not exclusively raised by her mother or with family in Peru.  During a DCPP evaluation in the past, the child “expressed a poignant wish: ‘to have a Dad.’ Her wish was not fulfilled.”  Just as home life was troubled, so was other areas of her life, as the court noted:

While flailing helplessly in the maelstrom of marital discord at home, Gabriela found no comfort at school. She was taunted and bullied because of her cleft palate, hearing loss and impaired speech. In desperation, Mother sent her back to Peru to live with her maternal Grandmother to escape the bullies and for medical treatment that she could not afford in the United States. Within a few months, Gabriela left her home in Peru for the United States; had her hopes for a family dashed; was bullied at school; and boarded a plane back to Peru without her Mother. Four months later, she returned to the United States at age 14. She is in therapy to ease the pain of separation, bullying, her many challenges and adolescent angst. She had cleft palate surgery. Surgical repairs, speech rehabilitation and dental restoration beckon.

At the divorce hearing, the Father requested a divorce, with the possibility of future parenting time “when I am ready.”  He did not know that his daughter was present in the courtroom.  The Judge noticed her in the courtroom and ultimately, when addressing the court:

Gabriela explained that she came here “to ask [the Court] if it is possible for him [Father] to see me once a week.” Gabriela hesitated before her evocative second request: “and I would like to give him a hug.”

The words in the opinion that followed were poignant:

A hungry person does not want a dissertation on the socio-economic causes of poverty. There will be time enough for that after the hunger pangs subside. A hungry person wants something to eat. Gabriela came to a Court believing that a Judge could and would help her. She did not seek an explanation of why some parents do not see their children. Gabriela stood courageously before strangers risking rejection, disappointment and more heartbreak if her requests were denied. Gabriela’s heart hungered to know and hug her Father.

The father still proclaimed not to be ready to see her.  What follows is what really started to tug at my heart strings.

Through colloquy with the Court, Father began to see things through his daughter’s eyes instead of his own. Father acknowledged that Gabriela was without him for most of her life wondering what she did wrong to explain his absence. He acknowledged that Gabriela might have been justifiably angry when she called him bad names in the past because she was unable to express her pain in a way that he approved of. Gabriela worried about her appearance, her prior surgeries and the surgeries to come. She suffered at school. She was depressed and attempted to harm herself. She was reminded why each time she spoke and whenever she saw her image in the reflection of her tears.

Before Gabriela returned to the courtroom, Mother said that she had a “gift” for Father. Her “gift” was to let him know that Gabriela is now considered a genius at school, and that she is a photographer and a poet whose poetry may soon be featured in the New York Times.

With that, the ice had melted.  The following is where I nearly lost it:

The Court then asked Father if he was ready to share the “gift” that was discussed while Gabriela was in chambers. Father quickly walked toward Gabriela as she rushed toward him. They sobbed heartily and hugged for a long time.

The opinion concluded with even more poignant words – the likes of which we seldom see in the battleground that is the family court:

Courage takes many forms and comes in all sizes. Gabriela’s courageous words were riveting. The tears that she and her Father shared were inspirational. Mother cried afterwards “that seeing my daughter happy makes me happy.” The Court thanks this beautiful child for her gift of hope. Tear-moistened soil is often fertile soil.

What a reminder of the resiliency and indomitability of spirit some children have.  What a reminder that it is never too late to re-establish a broken bond with your child.  What a reminder that a court should do whatever it can to prevent, if not stop (and if necessary, sanction) a parent that is taking actions (or allowing others to do so), which injure a child’s relationship with the other parent.  I have often said that childhood is fleeting.  Judge D’Alessandro’s thoughtful opinion is an excellent reminder of the importance of the parent-relationship.

Now I’m going home to hug my child.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Photo credit: Copyright: <a href=’http://www.123rf.com/profile_lenm’>lenm / 123RF Stock Photo</a>

GNALL V. GNALL – WHAT STARTED WITH A BANG ENDED WITH A WHIMPER

Posted in Alimony

As noted yesterday, the long awaited decision in the Gnall case was released today.  Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.  This case exploded onto the scene because it seemed to create a bright line that 15 years of marriage merited permanent alimony.

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However,  this case was decided before the new alimony reform statute had passed.  As I noted on this blog previously, there was a thought that the amendments to the alimony statute might render this much ado about nothing.  At the end of the day, it was much ado about nothing, but not because of the new statute, which was given very short shrift in the opinion.

Rather, the Justices, in a unanimous opinion, reiterated that all of the factors in the alimony statute must be considered, and no one factor can be elevated in importance.  One might say, “tell us something we don’t know.”

What was fascinating is the Supreme Court seemed to take both the trial court and the Appellate Division to task for focusing on one factor – duration of the marriage – to the exclusion of the others.  The Supreme Court noted:

… We find that the trial court did not consider and weigh all of the necessary factors required by N.J.S.A. 2A:34-23 in determining that permanent alimony was unwarranted but, instead, based its decision solely on N.J.S.A. 2A:34-23(b)(2). We further conclude that in reversing the Appellate Division inadvertently created a bright-line rule requiring an award of permanent alimony.

The Court went on to note that:

While the trial court identified the marriage as “not short-term,” it ultimately concluded that consideration of an award of permanent alimony was obviated by the parties’ relatively young ages and the fact that they were not married for twenty-five or thirty-years. The trial court therefore, in effect, determined that permanent alimony awards are reserved solely for long-term marriages of twenty-five years or more, excluding consideration of the other factors. No per se rule exists indicating that permanent alimony is unwarranted unless the twenty-fifth year anniversary has been reached. Therefore, we find that the trial court improperly weighed duration over the other statutorily defined factors in determining a long-term marriage must be twenty-five years or more.

We further conclude that in its disposition of this appeal the Appellate Division inadvertently created a bright-line rule for distinguishing between a short-term and long-term marriage as it pertains to an award of permanent alimony. Although the Appellate Division stated “we do not intend to draw specific lines delineating ‘short-term’ and ‘long-term’ marriages in an effort to define those cases warranting only limited duration rather than permanent alimony,” a fair reading of the opinion may lead to such a conclusion. By not clarifying that the statement reflected only the fifteen-year marriage in this particular case, the Appellate Division made a generally applicable declaration.

The Court further noted that in using the language that was used by the Appellate Division, consideration of the other alimony factors was functionally eliminated.  The Court held:

Moreover, we note that the final clause of the sentence affirms that the “not short-term” nature of a fifteen-year marriage mandates that it cannot be considered for limited duration alimony. Such a holding removes the other twelve factors from consideration for alimony awards once a marriage reaches the fifteen-year mark. Our cases have consistently held that all thirteen factors must be considered and given due weight, and the duration of marriage is only one factor to be considered. (Emphasis added).

There you have it – courts have to consider all of the factors.  Put another way, there can be long term marriages where permanent alimony was not appropriate when all of the other factors were considered, and short term marriages that may have required permanent alimony, all other things considered.

As noted above, the new statute was barely mentioned.  Essentially, the new statute was dismissed in a footnote which said:

N.J.S.A. 2A:34-23(c) was amended on September 10, 2014 to specify that “[f]or any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. . . .” The amendment is not applicable to this case.

Clearly, on the remand, that means that the court will have to decide alimony based upon the old statute.  Query, however, what this means to cases settled or decided before the Amendment which have to go back to court for some reasons.  I suppose that some may use the footnote to argue that the old law should apply if it helps their client’s case.

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Even though the end result was somewhat anticlimactic, being involved in the process was still rewarding.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Gnall v. Gnall Being Decided On 7/29/15

Posted in Alimony

The long awaited decision in the Gnall case is being released tomorrow (7/29/15).  Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Interestingly, when we filed the brief, it was before the new alimony reform statute had passed.  While the amendments to the alimony statute might render this much ado about nothing, in any event, I am sure that the bar and the alimony reformers are interested in the outcome.

It will be interesting to see if tomorrow’s decision references the new statute and the justices’ feelings about it.

Stay tuned.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

MARRY HER ANYWAY? NO MATTER WHAT THEY SAY? WELL, IT MAY END IN ANNULMENT ANYWAY

Posted in Civil Unions and Domestic Partnerships, Divorce, Equitable Distribution, Interspousal Agreements, Practice Issues, Property Settlement Agreements

Romeo and Juliet, Sir Lancelot and Guinevere, Katniss Everdeen and Peeta Mellark – for some of these star-crossed lovers, their journeys ended with hemlock, in exile, or…well…no spoilers.  For Easton and Mercer, their romance ended with an annulment on the grounds of equitable fraud in a lengthy decision delivered by Judge Jones in Ocean County New Jersey in Easton v. Mercer.

The union between Easton and Mercer began like many others.  The parties met in 2008 as young twenty-somethings, and began a dating relationship that lasted 2 years.  At the time, each were still living in their parents’ homes.

In 2010, Easton proposed to Mercer and she initially accepted.  Her parents, however, objected, disapproving of Easton as a “suitable husband” for their daughter.

Even so, over the elder Mercers’ objections, their marriage plans went full steam ahead and the parties planned a small ceremony to take place in 3 months’ time.

In October, 2010, the parties formally applied for a marriage license and the next month they went ahead with their small ceremony, which took place in the home of Easton’s parents.  Mercer’s parents were not invited.

While Easton and Mercer had planned to begin their lives together under the same roof, those plans never came to fruition.  Mercer advised Easton that she intended to remain residing with her parents until she could “break the news of the marriage to her mother and father after the fact.”

Well, the “after the fact” news was not taken well.  Mercer’s parents insisted that she renounce the marriage and remain living with them.  While Eason tried to convince Mercer to resume their relationship, his efforts were unsuccessful, and Mercer remained at her parents’ home, “never returning to [Easton] again.”

Yet, for the next 4 years, the parties stayed married and never took any steps to formally dissolve their marriage.  Finally, in 2014, Easton filed for an annulment of the marriage on the grounds of fraud as to the essentials of the marriage “by bowing to parental pressure and abandoning both him and her marital vows.”

Many people are unfamiliar with the particulars of annulments.  That is for the simple reason that they are not often applied for in our courts, namely because of the limited circumstances that it covers.  Instead, divorce is a far more common cause of action for the dissolution of a marriage.

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The major difference between an annulment and a divorce is that in an annulment, the facts giving rise to grounds for the dissolution of the marriage typically precede the marriage itself, whereas the causes for divorce arise during the marriage.  Annulment also differs radically from divorce in that an annulment legally declares a prior marriage retroactively null and void, as if having never happened in the first place.

The grounds for annulment have historically been very limited; among them are:

(a) Already existing, concurrent marriage of one of the parties

(b) Prohibited degrees of relation

(c) Impotence

(d) Incapacity to Consent, Duress or Fraud

(e) One of the parties was underage at the time of the marriage

In a case of an allegation of fraud, as was the allegation in the Easton case, New Jersey courts have held that there needed to have been some intention to deceive the other party.

For example, marriages have been annulled where there was premarital fraudulent representation of intent to have children; insistence of having children where the party previously indicated they did not wish to have children; belief that other party would practice Orthodox Judaism but really have no intention of doing so; a history of undisclosed hereditary chronic tuberculosis; and, concealment of a severe heroin addiction.

The common thread among all of the above example is that there was clear intent by one party to deceive the other.  However, in the Easton case, such intent could not be found – “on its surface, the evidence does not reasonably support a finding that defendant knowingly intended to deceive plaintiff before the marriage by purposely supplying him with false information.”

But, on the other hand, the Court found that even without this previously required intent to deceive, there was never any real marriage of substance between the parties; the marriage both started and ended with the ceremony itself.

After setting forth the history of equitable fraud as a cause of action, Judge Jones ruled that the marriage could be annulled on the grounds of equitable fraud, even where there is no evidence to suggest that Mercer purposefully sought to lie to or deceive Easton.

He reasoned: “In the present matter, while defendant may not have actually intended to deceive plaintiff, an objectively reasonable analysis of the facts and evidence in this case reflects the undeniable reality that deep down, defendant never truly had a genuine commitment to a marital relationship with plaintiff in the first place.”

While Judge Jones went on to hypothesize at length as to the reasons Mercer could have chosen not to pursue the marriage, he concluded that Easton was deserving of the annulment – “‘I do’ does not mean ‘I do’ after I go home for a few weeks and talk with my parents some more.'”

While this case was one of first impression, Judge Jones reasoned his decision using existing case law and equitable doctrine. This couple never lived together, they were not financially dependent on one another and they never held themselves out as husband and wife. It is important to remember that had these parties undertaken any of the privileges or duties of marriage, the result likely would have been different. However, the facts of the case certainly justified an annulment on equitable grounds.

Judge Jones has been known for his lengthy and well-reasoned decisions, often pioneering areas of family law, and frankly, saying what others are too afraid to put into words, let alone in 20-30 page decisions. In fact, I blogged on 2 such decision in the past: one on college contribution for families with multiple children and another on overseas travel. Easton v. Mercer is yet another decision that may be often cited by practitioners when similar issues arise. It will be interesting to see what Judge Jones has in store next.

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head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

‘Cause Baby, Now We’ve Got Bad Blood…

Posted in Divorce, Mediation/Arbitration, Practice Issues

With finger pointing, unsolvable problems, sad thoughts about the good times, and, most eloquently, “No I don’t fear no more, better yet respect ain’t quite sincere no more,” it is as if Taylor Swift’s latest hit was born for this blog.  Does it always, though, have to be about “Bad Blood” or will it ever get to the point that you can just “Shake it Off” (forgive me Sir Paul)?

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Readers of this blog know that I regularly discuss how the emotionally charged world of family law can only be made more so when two parties refuse to work with each other towards an amicable resolution, especially when represented by unreasonable attorneys furthering the charge.  When the smoke clears, however, the parties may be left barely standing and wondering where it all went wrong – the exhausted emotions, the legal fees needlessly incurred/spent while trying to figure out how they will be paid, the years of lives lost to litigation, the children destroyed by the endless battleground.

Taking a step back, no one really wants to go through this process.  The challenge comes when the wallet does ultimately have a bottom and decisions have to be made that not only can preserve the present, but also the future of all involved.  It never ceases to amaze me how frequently parties and, as a result, the attorneys on their behalf lose sight of the long-term goal simply to procure the short-term “win”.

What, then, is a frustrated litigant to do?  Being reasonable should be the right thing to do, but what happens when the other side has other ideas?  What if the other side is pressuring you through the kids, or with money on their side?  What if his family members are funneling money to pay for counsel fees while you are wondering how the next bill will be paid?  You can always ask for counsel fees but they are by no means a guarantee no matter how strong your position may be and, ultimately, you are faced with the unenviable choice of capitulating to your spouse’s unreasonable position, or continue fighting the exhaustive good fight.

Effective mediation.  Productive collaboration.  A common goal to bring a case to a reasonable conclusion.  Each is often effective, but oftentimes it is not until the end stages of a divorce litigation, with trial on the horizon, that parties finally realize that allowing a trial judge who knows little about their lives should not be the one to make decisions that will impact them for years, if not decades to come.  These are all lofty, but sometimes unattainable goals.  The only option may ultimately be that very trial, allowing the cards to fall where they may and seeking counsel fees as a component of any overall relief.

None of this is easy, no matter how simple the case.  The very nature of what is happening defies ease.  However, just because you may be “never ever (ever) getting back together” does not mean that the end cannot be done in a way that minimizes the long-term damage (emotional, financial and otherwise) for all involved.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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I is for Independence: The divorce is over and so now what?

Posted in Divorce, Equitable Distribution, Estate and Trust Issues, Other, Uncategorized

You’re at the Courthouse and your attorney has handed you for your final divorce documents.  It may be as a result of a negotiated settlement, or it may be as the result of a judge’s decision, but you are a single, independent person again.   But the end of the divorce is not exactly there yet. Various tasks and decisions still remain.

Division of Retirement Accounts:  If a retirement plan has been distributed between former spouses, steps need to be taken complete the division of any retirement accounts, particularly pensions, otherwise known as defined benefit plans.  Most these types of plans require a specialized order known as a Qualified Domestic Relations Order  to divide the account according to the terms of a divorce.  Others, including 401(k) plans, or defined contribution plans, may require a domestic relations order, or a specific form from the institution in which the funds are held.

Health Benefits:  In the event of an absolute divorce, a former spouse can no longer be a dependent on an individual’s health plan.  The non-subscribing spouse typically has a 30 day grace period in which alternate coverage must be obtained.  30 days go quickly however, and it is important to procure coverage.  Sometimes, it is wise to take COBRA benefits from the former spouse even for a few months just to make sure there is no gap in coverage if you have not researched other plans.

Beneficiary Designations on Life Insurance, bank accounts, and retirement accounts:   Unless you have obligation as a result of the divorce (often the case with some amount of life insurance), be sure to change your beneficiary designations.  If you die, the designations on accounts will typically govern who receives the benefit.  It may not matter if a judgment of divorce has been granted.

Estate Planning:  If it has not already been done, estate planning documents, including wills, health care directives and durable power of attorneys should be changed to reflect current wishes, and, if appropriate, to conform with directives in the divorce documents (trusts for minors, etc.)

Maintaining financial records: In the event that there is a future financial court proceeding concerning finances, it will be important to demonstrate what the financial circumstances were at the time of divorce.  Saving a copy of the Cases Information Statements that were filed at the time of divorce is important.

School records: Many times it is appropriate to inform childrens’ schools of a change in status so the records can accurately reflect any limitations in custody agreements. This is particularly true of one parent will be picking children up on certain days.  Also, most schools will arrange to have duplicate sets of school notices sent to each parent to avoid confrontation.

Closing out credit cards and other joint accounts:  It is helpful to obtain a credit report in order to make sure that all joint credit cards, or cards in which the former spouse is an authorized user have been identified and closed.

Making sure these tasks are attended to sooner, rather than later, will help with a smooth transition into the next chapter!

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state, including South Jersey. Jennifer can be reached at 609-895-6712 or jmillner@foxrothschild.com.

How Do Social Security Disability Benefits Affect Child Support?

Posted in Child Support

If your former spouse is receiving Social Security Disability (SSD) benefits and is the payor of child support, it is important to know that your child is also eligible for certain benefits – known as SSD Dependency Benefits – and that they will have an effect on how much your former spouse must pay directly to you for child support.

Generally speaking, SSD benefits are meant to substitute for the lost earning power of a disabled worker.  Put another way, the SSD benefits are intended to help compensate you for the pay you’re losing due to your disability and, therefore, your inability to work.  If you are unable to work, and you have children, it stands to reason that you will need help supporting those children while you’re on disability.  This is the purpose of the SSD Dependency benefits.  While SSD payments belong to the disabled worker, SSD Dependency benefits belong to the child and are intended to help meet the child’s current needs.

In general, if the disabled worker is the parent paying child support, courts will credit SSD Dependency benefit payments against that parent’s child support obligation as long as the credit is being made against child support incurred contemporaneous with the benefit payment and if arrears exist.  For example, let’s say the parent’s child support obligation for the period between April 2012 and August 2015 totaled $30,000, and the parent had only been able to pay $15,000 due to being out of work.  If the child received a dependency benefit check for that same period in the amount of $20,000, then courts will allow for $15,000 of that $20,000 benefit to be applied to the arrears.

But what about the remaining $5,000?  Absent a showing by the parent receiving child support that it would be unfair to apply that $5,000 to future child support payments, courts can order that the balance of a dependency benefit that has not been applied towards arrears can, instead, be applied prospectively to the future child support payments.

And this makes sense.  Your child should not be penalized because one of his or her parents is on disability, but at the same time, the dependency benefit is not intended as a windfall but rather as a way for the disabled child support payor to keep up with his or her child support obligation.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

The Importance of the Decision: Don’t Let a Hotly Contested Issue Go Undecided

Posted in Child Support, Practice Issues

So often, parties go to court only to be told by the judge to “work it out.”  It’s a strange phenomenon; after all, if the parties could “work it out,” why would they go to the trouble and expense of hiring lawyers, gathering proofs, preparing pleadings, and appearing in court?

We all know that one of the risks inherent in litigation is that the parties will have to deal with the realities and limitations of the very busy Court system.  No matter where you live in New Jersey, every court house is busy and every judge has many cases to preside over.  Oftentimes, judges want the parties to resolve the issues themselves simply because they know that – given all of the other cases on their plates – a decision could be a long time coming.

While settlement can lead to a fair outcome, sometimes the parties are too far apart in their positions and need to call on the judge to make a decision.  In those cases, it’s important to remember that litigants have a right to a decision from the court, including the necessary findings of fact and conclusions of law.  In a recent unpublished decision from the Appellate Division, Watson v. Chamberlain, the parties were unable to resolve a dispute about the payment of their child’s medical expenses.  Instead of deciding the issue or ordering the parties to produce discovery and proceeding to a hearing, the Court “directed the parties and counsel to try to work out the $609″ Ms. Chamberlain claimed Mr. Watson owed her.  When the parties appealed the issue, the Appellate Division’s hands were tied.  Without any sort of record of factual findings or conclusions of law – in other words, without any kind of decision by the Court – there was nothing for the Appellate Division to review.  In the end, the Appellate Division ordered that the trial judge conduct the hearing regarding the medical expense issue anyway.  A lot of time – and legal fees – could have been saved if the trial judge had made a decision the first time around.

It is part of the attorney’s job to know when to settle and when to litigate.  And it is, without a doubt, the judge’s job to make a decision when the parties can’t do it themselves.  If the parties truly have an issue that they cannot work out, we have to advocate to make sure the judge decides, no matter how much pressure is put on the parties to settle.  Otherwise, there is no recourse; the Appellate Division won’t be able to affirm or remand a decision that never happened, and the parties will be left in limbo indefinitely.

 


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.