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NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

BEWARE – THE LITIGANT WHO GOT THE “BAD DEAL”

Posted in Alimony, Child Support, Practice Issues

All too often in post-divorce litigation, we meet with a potential client who tell us how he got a bad deal and that the prior lawyer (if there was one) did a bad job, sold him out, did not care, and all sorts of other reasons.  Aside from the fact that both litigants presumably entered into the agreement knowingly and voluntarily, understanding all of its terms and knowing that he had the right to a trial instead of settlement, and testifying as much in court, how does this mindset impact upon a post-Judgment matter?

beware

Typically, not well.  In fact, it is that sort of mindset that can turn a simple matter into a hotly contested, lengthy and costly post-Judgment litigation where the litigant is so concerned with making what he believes is another bad deal that he may even rather go through a trial and have a judge make the decision rather than privately reach a resolution.  He may even hire a lawyer with the directive that the lawyer has to take a hardline position until the matter’s conclusion so that he does not think that there was a repeat of the divorce result.  Everyone ultimately pays the price in the end in counsel fees and potential expert fees, but that only seems to matter to the other party.  In other words, cost is no object to the litigant who believes that he got a bad deal and he will not rest until a “tit for tat” bad deal is reached that, in the mind of the upset party, somehow levels out the bad that he believes happened to him during the divorce.

Indeed, I once litigated a post-Judgment alimony reduction matter where my client (the supported spouse) willingly let the other party (aka, the party who believes he got a bad deal) choose the mediator.  When the mediator did not want to hear what he had to say and told him that he was being unreasonable, he immediately ended the mediation session and refused to return to that person.  I then provided him with the opportunity to choose the next mediator.  When meeting with the new mediator, he similarly became frustrated, and even argued with the mediator when told that he was being unreasonable.  Tellingly, with both mediators, he conveyed that he was unhappy with the deal that he got in his divorce and that he thought his lawyer at the time did a bad job.  The mediators knew, from then on, that the matter was not just about resolving the present issue, but dealing with someone who was not going reach an agreement unless he felt that he had somehow “won.”

Ultimately, we reached a settlement that provided both parties with what they wanted, but it was not without its scars, and not without counsel fees far exceeding the amount at issue.  Unfortunately, there is only so much that a party can do when the other party is litigating with this mindset – a proper counsel fee application can be made at the end of the matter.

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

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TERMINATING ALIMONY FOR TERMINALLY ILL PATIENT, PART 2 – THE SUPPORTED SPOUSE

Posted in Alimony, Modification

Back in October, 2013, I blogged about losing a dear friend and client, Bill*, after his long battle with brain cancer, and unfortunately, also after a long battle with his former wife over his continued alimony obligation to her.

ID-10038884(photo courtesy of freedigitalphotos.net)

Over the past several months, I received many emails from people who had read the blog and were touched by Bill’s story.  They, or someone they loved, also struggled with health issues and were nonetheless continuing to pay alimony at a rate that they simply could not afford in light of their involuntarily reduced income.  They empathized with both Bill and his dear wife, whom I still keep in touch with to date.

Several days ago, however, I received an email from an individual who had read the blog; but this time, it was written from the perspective of the supported spouse.  I received permission to anonymously publish the email here:

Ms. Baer,

I came across your blog while researching this subject for my sister. She is on the opposite side of your friend, “Bill”, and it is a moral dilemma for sure. In my sister’s case, she was awarded lifetime alimony three years ago by the Delaware court after 25 years of marriage to her ex-husband. She is unemployed due to a variety of mental and physical problems but we are hopeful she will gain some type of part-time job soon. Her three sons are all over age 18 so child support is not an issue. Last September her ex, age 52, was diagnosed with brain cancer, stage 4 glioblastoma. He continued to pay my sister alimony as he was on short term disability from his employer, a large pharmaceutical company. About a month ago, her ex’s new wife (married less than three years), who has power of attorney,  texted my sister with the message that they would not be paying alimony as the employer had stopped paying the ex. She stated they were living on Social Security until long-term disability kicked in, which she understood would pay 60% of the ex’s former salary. And they could not now afford to pay my sister and also the ex’s health care. FYI, there are other considerable assets including the pay-off distribution from the marital home of which the ex received a very substantial sum. But there are changed circumstances of income obviously. The dilemma for us is what to do next and it is not an easy decision. Her ex-husband could possibly die soon which makes the case for alimony moot. As you present in your blog, to make the last days of someone who is dying more troublesome with concerns about alimony seems unconscionable. But on the other hand, if he continues to live for some time, the alimony obligation is there and the need to receive alimony is there too.

I am not writing to you for legal advice. I am pointing out another side to this very sad situation. In my opinion, my sister received very poor legal representation during her divorce so we want to avoid incurring further legal costs. We are trying to work amicably with the new wife, obtain an amount of alimony they (ex and wife) will agree to when/if the long-term disability kicks in along with Social Security, and submit a motion for reduction of alimony to the judge (assuming the ex is still living) without any representation of counsel.

Both of these situations point to the necessity of thinking about worse case scenarios when drafting stipulations involving divorce, alimony, life insurance, and property division.

Of course, because every case has its own unique set of facts – precisely why family court judges are granted such wide discretion in making these types of decisions – the case presented in the email is far different from the situation Bill dealt with, particularly in terms of his former wife’s ability to earn an income that well exceeded the income assigned to her at the time of the divorce, and in fact, well exceeded Bill’s reduced income.

However, the person who wrote this email is absolutely correct.  When one is diagnosed with a terminal illness, the fallout is never easy for anyone who depends on that person for love, guidance, monetary support or emotional support.  I truly feel for both the former spouse, the new spouse and, of course, the person at the center of all this, the person that may lose his life to cancer imminently.

It is for that reason that in situations such as the ones described above, I always try to take an objective view and to ask myself: what would these parties do if they were still married?  Would the spouse who typically earned the bulk of the money during the marriage continue to do so?  Or would the non-supporting spouse seek employment, contribute more to the family pot and weather the storm with his or her ill spouse?  Many times, particularly in Bill’s case, it would have been the latter.

Nonetheless, that type of common sense analysis typically gets lost in the semantics of Lepis v. Lepis – the seminal alimony modification case – when judges opt for strict adherence, demanding to engage in extensive discovery, hold hearings and proceed as if the supporting spouse simply opted to move to a less lucrative career, rather than involuntarily face a terminal illness.

Issues of family and support are never easy.  But it is interesting to see the real human emotions that exist on both sides of the coin.  I thank the author of the email for their input into this delicate issue.

*Name changed to protect client confidence.

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Baer, Eliana T.Eliana T. Baer is a frequent 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.

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PALIMONY CASE, MAEKER V. ROSS, BEING ARGUED IN NJ SUPREME COURT ON 5/5/14

Posted in Palimony

Regular readers of this blog know that we were the winning attorneys in the Appellate Division in the landmark palimony case, Maeker v. Ross, as we previously blogged on that decision.  As many of you know, the New Jersey Supreme Court granted Certification last year.  Both the Family Law Section of the New Jersey State Bar Association and the New Jersey Chapter of the American Academy of Matrimonial Attorneys, filed amicus briefs in the matter.

The case is scheduled to be argued before New Jersey Supreme Court on May 5, 2014.  Once again, I will be arguing on behalf of Mr. Ross.  In addition to plaintiff’s counsel, representatives for both amici will be arguing, as well.  Stay tuned for the decision.

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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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APPELLATE DIVISION ADDRESSES EMANCIPATION FOR A CHILD IN COLLEGE

Posted in Child Support

Emancipation of a college student – when does it happen?  When should it happen?  In the wake of the Rachel Canning matter, emancipation is a hot button topic in New Jersey.  Generally, the law provides that a child is emancipated when he or she is no longer within the parental “sphere of influence and responsibility.”  It is been deemed the “conclusion of the fundamental dependent relationship between parent and child.”  Well, what does that even mean?  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.

college (courtesy of google free images)

Here are the facts that you need to know:

The parties’ entered into a settlement agreement that provided for mom to be the primary residential custodial parent for the children, and for dad to pay child support until emancipation, which was defined in the agreement as follows:

An Emancipation Event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

a. The completion of five academic years of college education;

b. Marriage . . . ;

c. Permanent residence away from the residence of [plaintiff] . . . ;

d. Death;

e. Entry into the armed forces . . . ;

f. Engaging in full-time employment, during school vacations and summer periods shall not be deemed an Emancipation Event.

g. Notwithstanding anything contained in sub-paragraph (a) above, an Emancipation Event shall be deemed deferred beyond a child’s [twenty third] birthday only if and so long as he pursues college education with reasonable diligence and on a normally continuous basis.

More than 10 years after the settlement, the Passaic County Probation Division inquired as to whether the child at issue was emancipated for purposes of child support enforcement.  In response, mom submitted documents showing that child was a full-time student at Berkeley College.  Probation, however, was not satisfied with such proofs, and requested a court Order relieving it of its duties to monitor and collect child support.  At a subsequent hearing, the trial judge, after finding that child was a full-time college student, denied Probation’s emancipation request.

After further procedural activity involving Probation’s enforcement duties, another hearing occurred several months later where Probation again argued – despite the trial court’s prior Order – that it was not satisfied with mom’s proof that the son was a full-time college student.  Mom responded that child was in his sophomore year of college, and that he was originally enrolled in Seton Hall University, but did not do well.  She added that he took one semester off before transferring full-time to Berkeley College for online classes where he was maintaining a 4.0 grade point average.

When asked why child was taking online classes, mom responded that it worked better for his schedule, because he was also working 2 jobs to pay for his car insurance bill.  When asked if child was working full-time, mom responded that he was, at which point the judge declared the child emancipated, concluding that “the son was not pursuing a college education with reasonable dilligence on a normally continuous basis as required by the PSA.”

On appeal, the Appellate Division determined that a plenary hearing should have occurred to determine if the child was emancipated, since it is a fact-sensitive inquiry – specifically, “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”   The trial court based its ruling solely on “limited questioning” as to the son’s full-time employment while taking online classes and, as a result, a conclusion that he was not pursuing full-time education with reasonable diligence.  The trial judge made no findings as to:

  • The child’s needs and abilities;
  • How many course credits he was taking;
  • His total expenses for school;
  • How many hours he was working;
  • How much he earns;
  • Whether those earnings are sufficient to cover the costs of school and living expenses;
  • Whether there were scholarships or financial aid packages applied for and received; and
  • Other relevant factors.

The parties’ agreement also provided, as quoted above, that one defined emancipation event was the completion of 5 years of college, and that, if the child reached his 23rd birthday, emancipation would be deferred “only if and so long as he pursued college education with reasonable diligence and on a normally continuous basis.”  Based on such enforceable language, the Appellate Division noted that the trial court failed to explain why he used the agreement’s standard for continuing college after 23 when the child was only 21 at the time of the hearing, and held that a child working “while attending school cannot be the sole determinative factor in the decision to emancipate,” nor can be the fact that he took a semester off before transferring to his present school.

The lesson to be learned here is that whether a child – especially one who is simultaneously in college and working – is emancipated is a very fact specific inquiry requiring detailed analysis and consideration.  The answer is not simply in a settlement agreement, nor can it typically be isolated to one specific detail.

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

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“EGREGIOUS FAULT” AND ALIMONY – CLARK REVISITED

Posted in Alimony, Child Support, Uncategorized

In 2012, I blogged on the reported Clark v. Clark decision, in a post entitled, “Finally A Case On”Egregious Fault As It Relates to an Award of Alimony.”

(Photo courtesy of free google images)

In this case, the husband proved that the wife secreted $345,690 from their closely held business during their marriage. He argued that this should have prevented any alimony altogether. The trial judge disagreed but did order the wife to repay half the amount taken, in satisfaction of plaintiff’s equitable distribution interest. He appealed and the Appellate Division reversed the alimony provision of the final judgment of divorce, concluding the facts supported a finding defendant engaged in conduct rising to the level of egregious fault. In reaching its decision, the Appellate Division stated:

… Nevertheless, defendant’s conduct transcends mere “economic impact,” as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the pharmacy. Defendant conceived and carried out a long-term scheme to embezzle the cash receipts from Grayrock, which deprived plaintiff of the immediate fruits of his daily labors and impinged on the viability of the joint business asset and the family’s future security. We determine her actions smack of criminality and demonstrate a willful and serious violation of societal norms.

The court noted that it was, “…  free to consider whether extraordinary, flagrant, economic misconduct during the marriage may rise to the level of egregious fault resulting in divorce and warranting denial of an otherwise valid claim for alimony.” The court further noted that excessive spending, waste of marital assets, or other acts of bad judgment was not “egregious fault.” However, the court held:

However, when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact “violate[] societal norms,” id. at 73, and equate to “egregious fault.” In analyzing such instances, trial courts must consider the totality of the facts and circumstances presented and determine whether the conduct warrants severing all economic bonds between the parties by precluding an alimony award.

So the case was sent back to the trial court with specific instructions.  On the remand, the trial court did not alter the alimony award, at all.  Rather, the amended judgment simply provided it shall not become “payable” until defendant  “pays the judgment” entered against her in the final judgment of divorce for over $167,000, representing half the money she had embezzled over time from the marital business.  The amended judgment, did not alter the amount or duration of the weekly alimony owed by plaintiff, but, at the same time, lowered defendant’s child support payment to plaintiff to $108 per week to avoid rendering her “destitute” and to “honor[] that fact that []defendant has needs [and] made contributions to the marriage.”  The rationale was as follows”

However, the judge concluded that defendant’s significant and secret thefts “still [did not] obviate alimony in this case.” He concluded “that alimony [was] still payable because the defendant’s conduct [only] occurred for 43 out of the 299 months that the parties were married.” He explained that “defendant ha[d] been economically dependent on the plaintiff for a substantial period of time” and that “defendant made contributions as a business partner . . . and as a homemaker.”

The plaintiff appealled and the Appellate Division reversed and remanded the matter, with the same instructions, once again.  In doing so, the Court held:

Initially, we observe that our prior remand was not unrestricted. Rather, we explicitly instructed the trial judge as follows: to determine if egregious fault was demonstrated; and, if so, the judge must consider whether the egregious conduct obviated alimony entirely; and finally, if alimony was still warranted, the judge must assess the impact of defendant’s conduct prior to fixing an amount. Clark, supra, 429 N.J. Super. at 77.

On remand, however, the judge did not reduce the alimony award in light of defendant’s egregious misconduct but, simply deferred the alimony payments despite his determination that defendant’s conduct amounted to egregious fault. Then, he adjusted defendant’s child support obligation to compensate her for the deferral of alimony caused by her misconduct. While we respect the judge’s thoughtful response to the remand, we part company with him on the relief he ordered.

Our Supreme Court has held that generally “marital fault is irrelevant” to determinations of alimony. Mani, supra, 183 N.J. at 72. However, the Court recognized two “narrow” exceptions: (1) “cases in which the fault has affected the parties’ economic life” ibid. and (2) “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” Ibid. The first exception “may be considered in the calculation of alimony” ibid. and the second exception may be considered “in connection with the initial determination of whether alimony should be allowed at all.” Ibid. Both exceptions apply here.

Moreover, the court noted that the reduction in child support impermissibly deprived the children of the required support.

As such, the Appellate Division restated its instructions from the prior opinion and remanded the matter to the Family Part to consider whether defendant is entitled to any alimony at all, and if so, what the appropriate reduction in alimony should be in light of defendant’s egregious conduct.

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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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THE LAWYER, THE LIAR

Posted in Practice Issues

I like a good joke as much as the next person.  That said, like many in my profession, I get sensitive about lawyer jokes.  Often, they are just cheap shots that in no way reflect the reality of what most of us do.  I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”

This one is particularly offensive on many levels.  Justice cannot tolerate dishonesty on the part of the lawyer.  In fact, honesty permeates the Rules of Professional Conduct:  meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful.  There is an expectation in the system that someone is not telling the truth.  That is why judges and juries have to determine who is more credible.  That said, a lawyer cannot allow their client to get on the stand and lie.

(photo courtesy of free Google images.)

Unfortunately, however, lawyers lie all of the time.  Small lies and big lies.  They lie to their adversaries and they lie to judges.  I am not talking about an honest mistake – you believed that documents were not provided, but they actually were.  That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.”  Efforts then digress into addressing the misrepresentation that could simply be avoided.

A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns.  I did not believe this to be true and said as much, but I had only been in the case for a few days.  The judge reamed my client.  When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt.  Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake.  She refused and then it became a much bigger issue.  It was a total and needless waste of time.

That’s a small lie that caused damage.  What about the big lie?  In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client.  The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.

In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise.  She disavowed her own statement.

In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.

Why do lawyers lie?  Some do it to get an advantage in the case.  Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful.  Some do it because it is a personal game – I win – you lose.  Some do it because they are unprepared or did not do what they are supposed to do so they are covering up.  Some do it to cover for their client’s misdeeds. Some do it because they just always lie.  For some, it is all of the above.

What do you do about it?   You raise the issue to the judge – but often, the judge doesn’t do anything about it.  Some times, it takes a trial to prove it and trials are few and far between.  Further, ethics complaints are usually tabled if not dismissed until a litigation is over.  If the perpetrator is a junior lawyer, perhaps you speak to their supervisor - but often that goes no where, because people protect their own.

That said, don’t let it go.  Call the person out.  Be prepared with your proofs.  At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight.  It is untenable when they lie and it does a disservice to the litigants, the courts and the system.  Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst.  And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable.  And don’t tell the big lie, for any reason.


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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TAX COURT RULES HUSBAND’S ALIMONY PAYMENTS ARE REALLY NON-DEDUCTIBLE CHILD SUPPORT

Posted in Alimony, Child Support, Practice Issues

In Johnson v. Commissioner of Internal Revenue, an interesting new decision from the United States Tax Court, a former husband was held unable to deduct the payments to his ex-wife as alimony because the amount of such payment was subject to a “child-related contingency.”  Specifically, the parties’ divorce settlement agreement provided that “spousal maintenance” payments to the former wife would end upon the occurrence of one of three events including “the graduation from high school of the youngest child.”  Thus, the issue became whether the payments, in the eyes of the Internal Revenue Service, were alimony or child support.

taxes (courtesy of free google images)

Section 215(a) of the Internal Revenue Code (IRC) allows a deduction to the payor for an amount equal to the alimony paid during the taxable year to the extent that it is includible in the recipient spouse’s gross income, as defined by the IRC.  Alimony is defined by the IRC as any cash payment:

1.  Received by a spouse under a divorce or separation instrument;

2.  The divorce or separation instrument does not state that the payment is neither includible in gross income nor allowable as a deduction;

3.  The payor and payee spouses are not members of the same household when the payment is made; and

4.  The payment obligation terminates at the death of the payee spouse and there is no liability to make either a cash or a property payment as a substitute for the payment after the death of the payee spouse.

The IRC provides, however, that if the payment is subject to any “contingencies involving child”, then the payment is considered payment made for the child and is not deductible by the payor.  “[Child] leaving school” is an example expressly provided in the IRC as one such form of payment – even if there is a specifically defined, separately allocated child support payment delineated in the agreement and being made by the payor.

Here, the settlement agreement not only provided for such a separate child support payment, but it also expressly stated that spousal maintenance payments would be tax deductible by the husband and taxable to the wife.  The parties abided by such language in completing their respective tax returns post-divorce.  Logically, the husband argued that the graduation date was “intended as a mere reference point for the termination of spousal support”.  The Tax Court held, however, that such intent “holds no value.”  As a result, the Tax Court concluded that the payments were really a form of child support, rather than spousal support, for the purpose of claiming the tax deduction.  Thus, the husband was not entitled to an alimony deduction.

This case is a cautionary tale for both litigants and matrimonial attorneys – do not use language like that set forth above when defining the alimony term, or else the payor spouse may suffer the same consequence as that of the husband in this matter.  Many settlement agreements often use a child’s achievement of a milestone – whether it be graduation from school, attainment of a certain age, and the like, as a termination date for alimony.  The risk of losing the tax deduction by use of such language, however, can prove disastrous.  Be safe and define the term through the use of specific dates.

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

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NEW JERSEY FAMILY LAW PODCAST SERIES PRESENTS: STOP. COLLABORATE. LISTEN.

Posted in Interspousal Agreements, Mediation/Arbitration, Practice Issues, Property Settlement Agreements

In the third installment of our New Jersey Family Law Podcast Series, we are proud to present – Stop.  Collaborate.  Listen.  Based on one of our earlier blog posts, Eliana Baer and I discuss why these three words are so critical to a successful outcome in divorce mediations, while highlighting the perils that can occur when divorcing spouses refuse to heed this advice during settlement talks.

Listen to the Podcast.

microphone

The above link will allow you to listen to the podcast, while the you can also  Download the Transcript  here for your reading pleasure. Enjoy!

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Robert Epstein and Eliana T. Baer are associates in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.

SHOULD YOU LEAVE WITHOUT BUTTONING DOWN THE DEAL?

Posted in Practice Issues, Property Settlement Agreements

During the current football free agent season, you hear the pundits frequently say that if you get a free agent that you want to sign in your building, don’t let him leave without a deal.  Why?  You don’t want them to get wooed by some other team or have second thoughts.   How does this apply to divorce, you may ask?

The case has been going on a long time.  One or both of the litigants or opposing counsel is difficult.  You are finally all together at a settlement conference, mediation, Intensive Settlement Conference at court.  Much to your surprise, real progress toward settlement is being made.  Finally, after a long, torturous day, you have a deal.

Arrows Choice Shows Options Alternatives Or Deciding Stock Photo  Photo courtesy of freedigitalphotos.net.

Now what do you do?  Do you do something to bind the parties to the essential terms of the deal?  If in court, do you put the terms on the record?  If at mediation, do you prepare some type of memorandum as the Willinboro Mall case that we have blogged on requires?  Or do you adjourn to prepare a formal Marital Settlement Agreement or Consent Order, knowing that someone could have second thoughts and blow the deal?  What if your client is desperate for the case to be done, but they are agreeing to a borderline bad or really bad deal?  Do you suggest that you adjourn to allow cooler heads to prevail with the hope that your client may re-think their acquiescence (maybe it was out of guilt, shame, fatigue, duress, emotional abuse going on behind the scenes, maybe they didn’t really understand, maybe they didn’t take their medicine. may they took a substance, etc.)?

That said, why do we not seal the deal, all of the time, even without a formal agreement listing all of the terms?  Because the devil is often in the details.  There are logisitical issues, issues about security, specific tax issues, issues regarding the specifics about how you will divide a retirement asset, etc. as well as a lot of other boilerplate – some meaningfull – some less so – that you would include in a formal agreement.  Sometimes you think you have a deal but then when you start discussing the details, you realize that there is more work to do, or in some cases, that there really wasn’t a meeting of the minds, at all.

Ok – so it sounds like you should never have a settlement without a formal agreement.  That’s not always true either, even though it is probably advisable.  In a recent matter, one party repeatedly reneged on a deal, even after my client agreed to ”just one more thing” over and over and over.  At a court settlement conference, both that litigant’s attorney and the mediator were of the firm opinion that if the deal wasn’t put on the record, they feared that the other party would renege yet again.  So even though this was complicated, we put the basic terms on the record because it was important to bind them for other reasons.  There are other times when it may make sense to bind people to their agreement, as well.  It really is a case by case decision.

These are scenarios that divorce lawyers and litigants face every day.  This is tough stuff.  There is sense of relief, if not euphoria, when a matter is settled. That said – you have to choose wisely before you walk out of the door without the settlement being completely buttoned down.


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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REDEFINING YOUR EXODUS: WHAT DIVORCING COUPLES CAN LEARN FROM ARRANGED MARRIAGES

Posted in Divorce

Passover begins this Monday night.  It is the commemoration of Jewish liberation from slavery in ancient Egypt. Some call it the season of freedom; many believe that, with the thawing of winter and transition into spring, it is a time to reevaluate the direction of our lives and have our own personal exodus from those people or experiences that are no longer healthy or beneficial.

ID-100207284(photo courtesy of freedigitalphotos.net)

For many readers of the blog, that means transitioning from marriage to single life; from stability to shaky footing; and from loving your partner to…well…not.

However, just as you may take a page out of the Jewish tradition in this season of rebirth to finally shed those unwanted relationships, you may want to plod a little further on in history to learn another thing or two from traditional populations: arranged marriages.

A study conducted by the Harvard-educated Senior Research Psychologist at the American Institute for Behavioral Research and Technology, Dr. Robert Epstein (no relation to our very own esteemed colleague and blogger), found that feelings of love in arranged marriages tend to gradually increase as time goes on in the relationship, surpassing in intensity at the five year mark.  This is compared to the typical modern-day “love marriage” where attraction is based on passionate emotions, and a couple’s feelings of affection diminish by as much as 50% after only 18-24 months of marriage.  In fact, arranged marriages are twice as strong as “love marriages” after 10 years.

Epstein attributed this almost counter-intuitive (by modern standards) phenomenon, to unrealistic media portrayals that present love as an uncontrollable, spur of the moment force. “We grow up on fairy tales and movies in which magical forces help people find their soul mates, with whom they effortlessly live happily ever after,” Epstein stated in an article in a 2010 edition of Scientific American MIND. “The fairy tales leave us powerless, putting our love lives into the hands of the Fates.” Epstein theorizes that this unrealistic concept of marriage cause many “love marriages” to eventually fizzle.

But not all hope is lost.  Epstein theorizes that relationships are organic.  They can be infused at will with positive and loving feelings.  This can simply be accomplished by mimicking the concept of the arranged marriage, shedding the fairytale notions of riding off into the sunset and developing a more realistic concept of a lasting relationship.

“But what do warm feelings have to do with my divorce?” you may ask.  Well, in many situations, you can become lost in a concept of what you think that their feelings are supposed to be for your former partner.  You can forget all the good times and experiences you once shared together or the deep loving commitment you may have had.  This could be the result of the modern portrayal of divorce: a contentious, awful experience that leaves one party downtrodden and the other victorious.

But it does not have to be that way.  Epstein says relationships are organic.  Positive feelings can be created and learned.  People need not adopt an unrealistic and, frankly, incorrect concept of divorce.  I’ve seen it.  It is in fact possible for both parties to behave amicably, settle their differences and move on; all while keeping their somewhat positive relationship intact.

So perhaps the lesson from the Jewish season of redemption is to redefine your exodus.  Note the positive action required.  YOU need to be the one to shift your paradigm, to redefine your own notions of your divorce and your relationship with your former partner.  According to Epstein, you are the key to your own success.

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Baer, Eliana T.Eliana T. Baer is a frequent 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.

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