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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 know 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 of 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.

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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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KILL THE GOOSE THAT LAID THE GOLDEN EGG AT YOUR OWN PERIL!

Posted in Alimony, Divorce, Equitable Distribution, Practice Issues

We see it all of the time.  Your spouse cheated and more than that, spent a lot of money on that #%!@@@ (add your own derogatory word here.)  Your say that your spouse is a terrible parent, a drunk, an addict, beats you and the kids, etc.  You say that your spouse is alienating you from your kids.  Your spouse cheats on his taxes and you can prove it.  Some or all of these things, if true, may have some relevance in a court  to properly address issues in your divorce case.

Cracked Egg Stock Photo

On the other hand, should you be blabbing these things all about town?  Sure it may make you feel good if people think you are good and your spouse is bad, that it is his/her fault, that you are perceived as the victim.  Notwithstanding, should you do it?  Now this does not mean that you can’t speak to family members, your therapist of closest confidantes.  But does it make sense to hurt your spouse’s and the parent of your children’s reputation in the community.  What if she/he has a business?  Does it make sense to do something that may impact the business?  What if he has a professional license?  Does it make sense to file a dubious report trying to get your spouse to lose their license – the very license that they will rely upon to pay the support you are seeking?  Worse yet, does it make sense to have your spouse arrested or file abuse claims that have to be investigated by authorities, that are not grounded in fact and/or are meritorious?

If you read today’s New York Daily News (or Post for that matter), the answer to these questions was a resounding NO in the case of Schacter v. Schacter.   In this case, the wife got a lesser share of the value of the husband’s interest in his law firm and less maintenance (aka alimony), because of her conduct that impacted the husband’s reputation and thus, as the court found, both the value of his interest in the law firm and his income.

In this case, much of the above hypothetical conduct was alleged to have occured.  Moreover, the wife went to the press with things which wound up in the paper and other web sites.  New York Judge Laura Drager’s rationale was interesting:

… But for her actions, notwithstanding the recession, his partnership value would not have declined.  In light of that position, the court concludes that the appropriate value of the partnership is as of the date of commencement of the action. The effect, if any, of the Wife’s actions during the pendency of this litigation is more appropriately addressed in determining what percentage of the value of this asset should be distributed to each party …

Thus, the judge determined that because of her actions, the was going to receive a smaller share of the of the law practice.  The judge went on, including addressing the wife’s claim that she did not intend to harm her husband’s career:

From the evidence presented, the court concludes that the Wife contributed to the decline in value of the Husband’s law practice. The court has considered the multitude of newspaper articles and website postings arising from this divorce litigation. The article and a significant number of the postings presented the Husband in a negative light. Although the Wife was not necessarily the source of each of these postings, she was the initial source of the articles, and, throughout these proceedings, regularly posted negative information about the Husband to various web sites. The Wife claims she never intended to harm the Husband’s career and that she, herself, never mentioned his law firm by name. The court finds her claim completely lacking in credibility. The Wife is intelligent and very savvy with respect to public relations. She would surely have understood that the reason why her stories had legs was precisely because her Husband was a partner at a major law firm. Even if by some stretch of the imagination she thought otherwise, the very first article printed in the Daily News, in which the Husband’s law firm was mentioned by name, should have disabused her of the belief that the Husband’s career might not be affected.

In the initial Daily News article, she accused the Husband of assaulting her, immediately after the charges had been dismissed on the merits by the District Attorney’s office. Later, she was the source of an article in the New York Post complaining that although the Husband had not paid $12,000 for new hearing aids for the daughter, he had purchased an engagement ring for his fiancee costing $215,000. This article appeared in the papers in late October 2011  In fact, the daughter received the hearing aids in July 2011. By the time the article appeared, the only point in issue was who bore the responsibility for the cost of the hearing aids in light of certain events that were in dispute. That issue was pending before the court. The Post article was picked up and circulated by numerous other web sites around the world. Some of those articles included the name of the Husband’s law firm. The court finds that the purpose of the original article was to embarrass the Husband and negatively affect his reputation. The Wife admitted in testimony that she spoke to reporters so often she could not recall how many conversations she had with them.

The Husband, in articles that mention his law firm by name, became an involuntary contestant for the negative award of Lawyer of the Month conducted by the Above the Law web site because of his alleged failure to pay for the daughter’s hearing aids. Although he “lost” the contest, several articles on that site and other web sites contained negative references to him resulting from thiscontest.  The Husband was then included in Above the Law’s contest for the negative award of Lawyer of the Year.  (Exhibit references in original omitted)

If that wasn’t enough, there is more:

The Wife argues that the drop in the Husband’s business was caused by his own failure to work as hard as he had in the past. She claims that in her comments to the media, “(s)he never disparaged (the Husband’s) legal abilities”, and therefore cannot be blamed for the loss in his income. However, as the Wife, herself a lawyer, would know, an attorney’s reputation is based not only on legal ability but on his reputation for integrity. Accusing a person in the media of an act of domestic violence (although the action was dismissed) and negatively raising an issue regarding payment of the daughter’s hearing aids when the issue was sub judice, could only have been intended to harm the Husband’s reputation. The Wife was well within her rights to publicly raise her concerns about domestic violence. However, the Wife’s incessant postings and discussions about the Husband went beyond any reasonable discussion of this very serious issue.

Perhaps most disturbing, the Wife may have filed grievances against the Husband with the New York State Supreme Court Appellate Division First Department Departmental Disciplinary Committee, potentially directly affecting his license to practice law. In the midst of the trial, the Wife acknowledged that she “tried” to file a grievance against the Husband. When pressed on this issue,the Wife “couldn’t recall” if she had filed a grievance against the Husband.

At trial the husband presented lay and expert testimony about how this conduct impacted his business.

As a result of the above and more, the Judge concluded:

The Wife’s conduct during this litigation has negatively affected his earning capabilities. It is appropriate for the court to consider the effect of her conduct in distributing the assets of the marriage. It has been held that actions taken by a spouse that damage the other spouse’s career can be considered in setting a later valuation date of that spouse’s enhanced earning capacity. For the same reasons, such behavior may also be considered under the statutory factors used to determine the distribution of marital assets. (legal citations omitted)

As a result of the conduct as well as the loss in value and income caused by the ecomony, the wife only received a 17% of the value of the husband’s interest in the law practice.  In addition, because the conduct decreased the husband’s earnings, the alimony was less too.  As to the rationale for this, the court noted:

In addition to the effects of the economy, the Husband had to endure the Wife’s attacks on his reputation in the media and on the internet. The impact of these stories on the Husband’s ability to generate income has already been addressed. In essence, the Wife chose to bite the hand that fed her. Although the court recognizes that the Wife feels she was badly treated by the Husband, her repeated attacks against him have played a part in diminishing his income. It may be that the Husband will be able to restore his career, but the Wife presented insufficient evidence to support a finding that he has already done so.

The take away from this is though you may have a hundred good (in your mind) reasons to do so and may feel totally justified in doing so, attempting to kill the goose that laid the golden egg – or as Judge Drager said,  choosing to bite that hand that feeds you, should be done with the knowledge that it could impact your overall entitlements.


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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USE OF MEDIATION AS A STRATEGY

Posted in Mediation/Arbitration, Practice Issues

We have heard over and over that settlement ranks high in the public policy of this state and know from experience how the system is geared toward settlement.  In particular, there is mandatory custody mediation, mandatory Early Settlement Panels (MESP), mandatory economic mediation, Blue Ribbon Settlement Panels, intensive settlement conferences (ISPs or ISCs depending on the county) and the like.  With all of these “mandatory” events, you get the picture. Courts even have the power to send cases to MESP and mediation in post-judgment matters.  In fact, it sometimes seems that you cannot get a ”real” trial date, even when you want one or need one.  I say that because often the first, or first several trial dates are not real trial dates, but dates wherein you come to court expected to try to settle.

Resolution Conflict Buttons Show Fighting Or Arbitration Stock PhotoPhoto courtesy of freedigitalphotos.net

And while you eventually will get there, are their times that you want to press for mediation, even before the “mandatory” appointed time?  The answer is yes.  Why, might you ask?  There are times that you just know that if the parties get into mediation sooner than later, the matter can resolve and the parties can move on with their lives.  There are three scenarios, at the least, where the strategic use of mediation can move the matter forward, if not toward moving it to settlement.

The first scenario is where there is no communication or worse yet, the wrong type of communication regarding the case.  In some cases, people are just doing nothing, waiting for the ESP or some other event, for no particular reason.  In other cases, there is an absurd amount of energy spent, or worse yet, unnecessarily wasteful motion practice on minor issues, if you can even call them issues.  Communications back and forth because someone returned to their home to remove some of their personal property; random fights over a $100 bill that has to be paid when there are no other real financial issues; silly parenting skirmishes that are much ado about nothing, etc.  There are cases that if you just got people in a room, or before a mediator, where they can focus on the real issues, an easy case can be put to bed and the parties can move on with their lives.

The next scenario is when you know that opposing counsel is just off the wall, and either does not know what they are doing, they don’t specialize in family law so they aren’t sure of what they are doing, and/or are just taking positions that do not relate to the facts in the case.  In those cases, you just know that when you get before a respected and skilled mediator, who gently, or maybe not so gently, adjusts the expectations, the case can settle.  Remeber, this may be the first time that the client has heard a non-biased, objective view of their position.  We did this recently in a case and although the other attorney wanted to leave – it was his client who for the first time heard that his position had no basis in reality, started to get real and begged to continue the mediation.

The last scenario is the one where the lawyer may be reasonable, but her client is not.  In these cases, the mediator and the unreasonable party’s lawyer, can work together to re-shape the client’s expectations.  This doesn’t always work – sometimes, there is no reaching the unreasonable person.   That said, the process can help reinforce the attorneys advice which could break the ice.

However, what you have to be careful of is that the mediator will get the lay of the land pretty early in the process and see that one party may be more reasonable than the other.  Since it is natural to want to try to effectuate a settlement, maybe report back to the judge that you got the case settled and then get more referrals, that the mediator will try to work on the more malleable party.  That is ok, to a point, as long as it is put into proper perspective, “yes you are paying a little more but this will end the case.”  On the other hand, what you want to avoid is the mediator creating a false “settlement anxiety”  (that I blogged about many times before) in the reasonable party.  That is not fair.  If one party is acting reasonably and the other is not, the reasonable party’s position should not be falsely diminished, simply to get that party to move when the other party wrongly won’t.

The takeaway from this is that the use of mediation can be a useful strategy to move a case forward. At the very least, you open the lines of communication that may have been closed or sidetracked, and/or find out whether it is the opposing party or their counsel, or both, who are being unreasonable.

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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 Matrimonial Millstone: An Exit Strategy from a Detached Defendant

Posted in Alimony, Child Support, Counsel Fee Awards, Divorce, Equitable Distribution, Visitation/Parenting Time

In the early 20th century, Dr. Duncan MacDougall attempted to quantify the mass lost when the soul departed the body upon death. This study has perpetuated the weight idiosyncratically known as “21 Grams.” Although this theory has largely been dismissed by later studies, the better question is: how much weight does your soul bear going through a divorce?

This emotive calculus is best typified by a phenomenon that I have witnessed during my career, which only perpetuates the Apollo archetype. One does not even need to see the Wolf of Wall Street or Mad Men to appreciate this paradigm; you have lived it in some incarnation or know someone else that has.

I have regularly had women retain me whose husbands have recently self-destructed, both emotionally and financially, desperate to extricate themselves from the wreckage. They often appear in consultations with reams of returns and conspiracy theories of offshore accounts. The problem is that these women were largely in the dark, and sometimes intentionally oblivious, to the financial ruin that their husbands have been perpetuating for the better part of a decade.

Typically, these women are married to men involved in some form of finance or stock trading, often self-employed, that briefly masked their addictive and excessive personalities. In the early stages of the relationship, the husband’s focus was on providing for the family and building their relative fortunes. As a result, his rapid ascension and acquisition of jewelry, cars, and homes while the wife was preoccupied on raising the children, led her to gloss over the looming harbingers.

In time, the children grow, the tennis lessons plateau, and the novelty of the toys wear off. Slowly, the husband’s time out of the house grows more frequent, justified by a purported obligation to entertain clients. This leads to excessive rounds of golf and drinks. The wife begins to long for something more, or to be nostalgic about how they once were.

A Bloody Mary with brunch is replaced by a bottle of wine before dinner. The husband’s focus shifts and he begins to become less diligent about his work obligations. He takes shortcuts in order to support his family and his growing emphasis on travel and entertainment to create the illusion that nothing has changed.

He takes shortcuts because he cannot keep up the facade. He incurs larger risks, whether it be through day trading, gambling or other cavalier investments, to cover the losses-only to get in deeper. He fails to make estimated tax payments, maxes out a credit card, liquidates a retirement account, or refinances the mortgage. All the wife hears is, “Sign here, honey”, unless he just signs her name to keep her from asking.

He begins rationalizing that he will simply make up the shortfall at year’s end, or that he will get that bonus that is not guaranteed. Then he doesn’t get it. The walls begin to close in but he refuses to admit to his family that they cannot keep up with Joneses.

This high wire act to keep everything afloat creates stress that cannot be sustained, manifesting itself with fatigue, migraines or a nagging injury requiring pain medication and prescriptions. They are used in tandem with an abuse of alcohol, and in some cases, recreational drugs. Soon, the husband gets pulled over, into a scuffle at a local bar, admitted into rehab, or commits an act of domestic violence. The losses mount, the children’s college funds are gone, foreclosure notices arrive, collection calls abound and he has no choice to but to file for bankruptcy.

Hubris and excess are a deadly combination, especially when mixed with serotonin. So, inevitably, the husband blames the wife for forcing him to provide for a lifestyle beyond their means. She blames him for destroying the family and for the endless dishonesty. She is now in your office, wants off the Titantic, but does not want her life to change. She files for divorce and soon realizes that while he is broken, he will cling to her like a life raft for as long as the courts allow him to.

I have always said that the length of a divorce is tied to the time that it takes for the defendant to catch up emotionally to the plaintiff to come to terms with the fact that their relationship is over. This delay is magnified in situations such as these because the only source of power that the husband once had, money, has vanished. This leads to a defendant that refuses to participate in the divorce, and an increasingly frustrated plaintiff.

As a result, the divorce process begins to recreate the mythology of Sisyphus, as defendants such as these typically refuse: to get a lawyer; file an Answer and Counterclaim; complete a Case Information Statement; or comply with discovery. Instead, they preach reconciliation and systematically hijack the divorce process but refusing to actively participate in it. The courts in turn simply give the defendant endless opportunities to cure his omissions without consequence and fail to move the matter forward.

The defendant begins to put his proverbial head in the sand known as the Ostrich Effect, and becomes the Albatross or Millstone around the plaintiff’s neck. Animal idioms aside, the question becomes how to divorce someone that refuses to acknowledge that the process is even occurring. I would recommend considering the following ten tips in situations such as these:

1. Rather than chasing a life gone by, debunk your illusions about hidden money especially those offshore. You may end up spending more than you will ever find searching for a treasure trove that does not exist.

2. Prior to filing for divorce, consult with a bankruptcy attorney as the filing of a bankruptcy petition will only put the divorce process on hold down the road. You must come to terms with the fact that filing for bankruptcy may be unavoidable as many of the debts are likely in joint name anyway.

3. Your credit score is important, but less important that your ability to provide for your family today. You must accept the fact that the notion of credit is a luxury that you may have sacrificed by living beyond your means for so long. You can always rehabilitate your credit score in the future, provided that you pay for necessities today.

4. Work around the defendant wherever possible to educate yourself about your assets and liabilities, as you have to assume that he will not do anything voluntarily to make your exit strategy easier. Therefore, always utilize your subpoena power if the defendant refuses to comply with discovery rather than filing motions to compel.

5. Determine whether it make sense to default the defendant if he is not participating, and if so, do not waiver from that decision. It may the only leverage you have over him during the process.

6. If the marital residence is facing foreclosure, determine how long before the house is seized, as the process always takes longer than you would think because you will not locate alternate free housing.

7. If you cannot take the risk of foreclosure or coexist with the defendant in the same house, determine if you can afford to move out.

8. Consider looking for a job, or a better paying one to supplement your income in the short term because you likely cannot count on his timely payment of alimony.

9. If there are only debts to divide and no assets remaining, accept it and move on. Do not insulate yourself from the prospect of starting over with nothing.

10. Above all else, try to be cost effective in your decisions and conserve your counsel fee payments while you are waiting for the defendant to come to the table.

Sun Tzu once wrote that: “Supreme excellence consists in breaking the enemy’s resistance without fighting.” They key to freeing yourself from a defendant that refuses to participate, is to embrace the process, conserve your remaining assets and to pick your battles wisely.

The emotional and financial cost to you of seeking the instant gratification of being divorced today will be far greater than the onus of patiently waiting to be divorced tomorrow. At the very least, I can assure you that this burden will weigh more than 21 Grams.

In large part, the difference between the world you will inhabit after you are divorced will largely resemble the one before it, especially if you have children with such a defendant. Inevitably, the judge assigned will not permit him any more chances to comply with court orders or grant him anymore adjournments. While you cannot control how long a leash is given to the defendant, you can avoid turning it into a self-inflicted noose.

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Seth Parker is an associate in Fox Rothschild LLP’s Family Law Practice Group. Seth practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7538, or srparker@foxrothschild.com.

DO NOT BE THAT DIVORCE LITIGANT

Posted in Practice Issues

There are always going to be those divorce litigants that, no matter what we say or do as the divorce lawyer, he or she is going to do what they want.  Legal advice, no matter how costly, falls on deaf ears, only leading to more counsel fees and issues to address in an ongoing matter.  Don’t get me wrong – I completely understand why this may occur, especially in the context of an emotional proceeding that impacts upon the members of what was once an intact family.  As a litigant, however, you have retained a divorce lawyer to provide a specific service on your behalf.  These experiences and litigants have inspired me to provide this brief list for you, as the litigant, to be aware of.

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1.  Disagreement is a Good Thing - Many clients often do not like to be told that his or her position or approach is not the best way to go.  This, however, is not necessarily a bad thing.  This does not mean that your lawyer does not like you.  This does not mean that your lawyer does not support you and will not do everything possible to provide zealous advocacy.  As a litigant, you are going to work closely with your divorce lawyer to reach a resolution or result that is in your best interests.  The process should be collaborative, and not confrontational.  Disagreement can lead to a better strategic path since, ultimately, your lawyer is there to act on your behalf and to guide you through the process based on years of knowledge and experience in family law.

2.  Your Divorce Lawyer is (Hopefully) Not a “Mouthpiece” – Oftentimes, a litigant will retain an attorney simply to do his or her “bidding,” so to speak.  The litigant will insist on drafting letters, briefs, and more, and will completely disregard the attorney’s advice.  Usually, however, this is a terrible idea, as your attorney knows the law (presumably), knows how to address adversaries and the court (ideally), and knows how to strategize on your behalf for your specific case.  While a client’s input is oftentimes instructive and quite helpful, and this approach can be more cost effective, I am not simply going to sign my name to a pleading or letter drafted by a client unless it is something with which I am completely comfortable.

3.  Time Wisely Spent is Critical – Do not handcuff your attorney’s ability to act on your behalf.  Directing your attorney not to review a certain document that may contain valuable information, or not to incur fees communicating with an adversary, may ultimately impair your case.  While it is your right, as a litigant, to tell your attorney not to do something, it is also the attorney’s right to tell you that she cannot represent you if you are not going to allow what she believes is appropriate representation.

4.  Saving Fees is Not a Sign of Surrender – There is no doubt that divorce proceedings can often be quite expensive and drag on for months, if not years.  While you may be intent on fighting about every issue no matter how big or small, without concern for the dollars spent, your lawyer will hopefully advise you of the cost/benefit analysis of your approach.  Is it worth spending $20,000 fighting over a $500 lamp?  Is it worth spending $5,000 fighting over $200 in reimbursement credits?  Ultimately it is up to you what you spend on what issue, but do not take your lawyer’s concern over the cost of litigating and recommendation to resolve the issue as a sign of surrender.

5.  Typically, it Takes Two to Tango - Some clients refuse to take accountability and will blame only the other spouse for the divorce and what has transpired during the divorce proceeding.  In certain cases, this position certainly has merit.  Oftentimes, however, the situation is otherwise.  The litigant does not like being told that he also could have handled a specific issue or incident differently, could have said something else to the children, could have refrained from sending that damaging email.  These clients are usually unambiguous and unrelenting in this sentiment – he has done everything wrong, I have done everything right, how can you as my divorce lawyer think otherwise?  Ultimately, one of the best ways to bring your case to an amicable, and equitable end, is to acknowledge that (usually) both parties have had a role in the undoing of a marriage or some other related issue.

6.  Keep Focused on the Long-Term Goals – When you first met with your lawyer, you had goals.  Get a divorce.  Procure primary custody.  Receive alimony for X years in a specified amount.  Move on with your life.  Protect the best interests of your children.  Do not get consumed by the daily back-and-forth, alternate universe world created by a divorce proceeding, where nothing is what it once was because everything you say and do is under a microscope.  The goal here is to get through the proceeding and onto the next stage of your life.

These are just a few of the tips on how “not to be that divorce litigant” that I describe at the outset.  It will only help you, your mindset, and, hopefully, your wallet, to keep these tips in mind when litigating your case.

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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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LESSONS IN ADOLESCENT CUSTODY AND CO-PARENTING FROM THE TEENAGE BRAIN

Posted in Custody, Practice Issues, Visitation/Parenting Time

Moody; impulsive; reckless; brash; exasperating. No, I am not describing Charlie Sheen circa 2011.  I am talking about teenagers.

Indeed, Aristotle described these elusive creatures as “heated by nature as drunken men by wine” – and that’s on a normal day.  But rest assured Mom and Dad – your teenager is not trying make your life miserable (although it may seem that way).  There is a likely neurological cause to your budding adolescent’s mood swings and overall maddening behavior.

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As noted by Beatriz Luna, a University of Pittsburgh professor of psychiatry, who uses neuroimaging to study the teen brain, compared with adults, teens tend to make less use of brain regions that monitor performance, spot errors, plan and stay focused.  As a result, a teenager’s quixotic characteristics are only heightened during periods of high stress, fatigue or other challenges.

Of course, to the extent that stress essentially add fuel to the teenager’s already high-burning fire, this poses special problems in a divorce when emotions run high, and even adults experience problems staying rational and balanced.

New Jersey, while recognizing the special characteristics of teenagers, does not offer very specific guidance on the issue of teenage custody. Rather, the good ol’ “best interests” standard continues to apply well past the start of adolescence.   However, in its weighing of the custody factors, if a child is of an age and capacity to form an intelligent preference as to custody, the court will consider the wishes of the child.  Still, the child’s preference is by no means conclusive.

In the consideration of whether to award child support, the Court recognizes, however, it is improper to immediately request a modification of support based upon a teenager’s change in custody.

The Appellate Division has recognized that a child’s change of residence from a custodial to a non-custodial parent is seldom permanent at the time of its inception.  As a general proposition, therefore “some time must elapse before the child can decide whether the new living arrangement really will be more to his or her liking and before the custodial parent can decide whether to accept the change on a permanent basis”.  Ohloff v. Ohloff.  The Court cautioned that during this transitional period, different perceptions of the permanency of such new living arrangements may require that the relative financial obligations of the parties not be altered.

As a result, there is no clear answer in New Jersey as to what extent a child’s preferences are considered in a custody dispute involving a teenager.  But that doesn’t mean you are powerless to help your teenager during this very difficult time.

Here are a few tips to help you do that:

1.         Keep your teen’s need for peer interaction in mind The teen brain is attuned to oxytocin, which (among other things) makes social connections in particular more rewarding.  Teens prefer the company of those their own age.  It’s nothing personal.  Recognizing that a teenager’s friends are probably more important than either you or your spouse may avoid the “it’s not fair” or the “you don’t understand me” unpleasantries of everyday life when you are going through a divorce with a teenage child in the mix.

2.         Create consistent rules between houses Risk taking peaks during adolescence.  In fact, most long term drug and alcohol abuse starts during adolescence, so it is important to use your tools to avoid that as best you can.  Psychologist, JoAnne Pedro-Carroll, indicates structure and a clear definition of right and wrong that is uniform between houses can help.  Otherwise, the teen is likely to rebel against the stricter parent in favor of the parent whose house offers little structure, no curfew, or more freedom generally.

3.         …But don’t be too suffocating Studies suggest that when parents engage and guide their teens with a light but steady hand, staying connected but allowing independence, their kids generally do much better in life.  Strike a balance.  Your teenager will thank you later.

4.         Present a united front – Teenagers can sniff out and rapidly capitalize dissention among the ranks.  A statement to the teen that neither Mom nor Dad will tolerate her shenanigans will send a clear message that there is no room for manipulation of the already volatile situation.

5.         Do not encourage your teen to take sides – They may seem like adults capable of handling the information like “Dad ran off with the housekeeper”, “Mom can’t manage money” or “You’re better off here with me”, but at the end of the day, they are still children.  Placing them in the middle of the situation will cause them to absorb the conflict between you and your spouse.  Generally, a bad idea.

6.         Do not hesitate to get professional help when it is necessary – Many therapists specialize in working with divorced parents and teens to help them co-parent and avoid common mistakes.  If you cannot handle the situation with your teenager on your own, there is no shame in seeking professional help.

But, after all that, here is the good news.  New research about the teenage brain conducted by B.J. Casey, a neuroscientist at Weill Cornell Medical College, suggests that teenagers are incredibly adaptive creatures.  With the right guidance, your moody, sometimes impossible teen may end up able to appreciate that her parents may be able to help her through this tumultuous time.

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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.