Header graphic for print

NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

New York Focus – The Exclusive Use and Occupancy of the Marital Residence, Pendente Lite

Posted in Custody, Divorce, Domestic Violence, equitable distribution

While our blog has focused exclusively on New Jersey family law since its inception almost 8 years ago (yes, it has been that long), we also focus our practice on New York family law.  We do not (yet) have a Fox New York-specific family law blog, so this blog will serve as a testing ground and forum, of sorts. Rather than start off with a light and feel-good topic (how many of those are there in family law anyway), this blog will delve right into a spouse’s request to have exclusive possession and occupancy of the marital home during the divorce proceeding (pendente lite).

house pic

By contrast to family courts in New Jersey, family courts in New York, pursuant to existing statute and case law, are more willing to grant one party exclusive possession of a marital residence during the divorce proceeding in the absence of domestic violence.  Parties, perhaps as a result, also more frequently make such request for relief in New York matters as compared to litigants in New Jersey matters. For starters, New York Domestic Relations Law 234 – Title to or Occupancy and Possession of Property, provides the fundamental authority for this type of pendente lite request:

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.  Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.

More simply, the statute provides that the family court judge can render a determination as to the possession of real property before final judgment, at the time of final judgment, after final judgment, or all of the above.  The request in each case will be analyzed based on the specific set of facts and circumstances at issue.  The nature of ownership of the real property in which sole occupancy is sought should have no bearing on the decision.

While such relief can be based on a need to protect the person seeking exclusive occupancy and/or the subject children, if any, it can also be based on a far more general standard that such occupancy is necessary to avoid marital/domestic strife.  The strife can be alleged to have an impact on the daily emotional well-being of the person(s) seeking relief.  The court will also consider alternative housing options for the moving party and non-moving party, as well as either party’s willingness to voluntarily pursue such alternative housing options. For example, exclusive occupancy may be appropriate if a non-movant spouse has voluntarily established an alternative residence and his or her return to the marital residence would cause the above-referenced “marital or domestic strife.”

Since the relief is requested in the midst of a divorce proceeding, there does have to be a greater basis for the request than simply unsubstantiated assertions of the parties’ inability to get along, or one party acting unreasonably towards the other.  The more specific the assertions, the better the chance of the request being granted.

Generally, a plenary hearing (ideally to occur in short order) with testimony should be held to render a determination on a pendente lite request for exclusive occupancy, resolving at such time competing affidavits and allegations between the parties.

Requesting exclusive possession and occupancy of the marital home, pendente lite, is not something that should be taken lightly.  While it is often requested, whether because the relief is actually appropriate or simply as a strategic maneuver in a custody dispute or to color the court’s view of the matter, it is something that should be carefully considered and discussed with legal counsel.


Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of freedigitalphotos.net (attributed to suphakit73)

What Constitutes “Evidence on Motions” in the Family Part?

Posted in Divorce, Practice Issues

As loyal readers of this blog may know, I often write about the trials and tribulations of practicing law in the Family Part.  Whether to benefit readers, engage in a vent session, or a bit of both, this particular post focuses on what evidence litigants should and should not include in support of a motion filed with the court.  For our non-attorney readers, a motion is what a litigant files when he or she wants the court to do something – hopefully only after efforts to resolve the issue with the other party have failed.  For instance, maybe the divorce proceeding just commenced and the other spouse has financially cut you off from everything.  You tried to discuss it with him, but he had no interest in resolving the issue.  Perhaps there is a custody and parenting time agreement in place, but she refuses to abide by its terms.


There are countless reasons to file a motion with the court asking for help.  In support of the motion listing your requests for relief, you may file a brief setting forth the relevant law.  In family law practice, briefs are not necessarily the norm, although a judge may find it useful depending on the subject issues.  The litigant will also file an affidavit/certification telling his or her story and why the court’s help is needed.  When putting together the certification, how is the litigant supposed to know what the certification should say, or what proof should go along with it.

The Rules of Court in the State of New Jersey talk about how certifications filed with the court can be based ONLY on the certifying litigant’s personal knowledge.  Specifically, Rule 1:6-6 provides:

If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.  The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

Well, what on Earth does that mean?  The personal knowledge part is in there, but then it talks about facts that are admissible in evidence to which the certifying party can testify.  Well, what does that mean?  Does that mean that a litigant can certify to what her friend told her about her husband?  Not likely, because that would constitute inadmissible hearsay (defined as an out of court statement submitted for the truth of the matter asserted).  Does that mean a litigant can certify as to what a child’s therapist said to her about the other party?  No, for the same reason.  Does that mean that a litigant can certify as to the details of all settlement discussions to show that the other party is being unreasonable?  No, because those discussions are supposed to be confidential.

Most importantly, however, does that actually stop litigants from doing any of the above?  Of course not.  Despite certifying under oath, litigants will essentially throw whatever they can at the wall to see what will stick in the mind of a judge including, but not limited to, unsubstantiated assertions, inadmissible hearsay, settlement discussions, argument, and the like.  There is little that can be done to stop it.  Objections are made but, at that point, even if the objection is sustained, the damage may have already been done.  There is no jury to excuse should something come out that should not have been said.  There is no cork to shove the genie back in the bottle.  Motion papers typically do not involve testimony, so a family court judge is being asked to make a determination based on nothing more than competing certifications. Judges are not supposed to weigh the credibility of Certifications.

While a plenary hearing may ultimately be scheduled so that the judge can take testimony based on the competing certifications, temporary relief is often granted until such time, with such relief based solely on what either party has to say.  I was recently in court on a matter where one party filed an emergent application against the other party to suspend my client’s parenting time based on allegations that were completely unsubstantiated and supported with nothing more than inadmissible hearsay.  Understandably erring on the side of caution, the family court judge imposed the temporary restraints and suspended the parenting time pending a return date.  It was not until the return date that the judge could see, after hearing from both parties rather than just one, that the allegations were completely bogus.  The parenting time was restored in full, as a result, and additional parenting time granted to repair the potential damage done by the time lost.

The reason for telling the story is that the judge, in rendering her ruling, generally noted how affidavits or certifications – even in the family part – must be properly prepared and filed in accordance with the rules, with appropriate references to the record and without the very sort of assertions prohibited by Rule 1:6-6.  It was a keen reminder from a jurist about how litigants and practitioners are not absolved from following the rules simply because a family part matter is involved.  If anything, with the stakes often higher in this part than any other, the rules carry a greater significance.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of freedigitalphotos.net (attributed to Stuart Miles)

Supreme Court of New Jersey Creates Unified Mental Health Service Provider Privilege

Posted in Custody, Practice Issues, Visitation/Parenting Time

The question of a parent’s mental health often arises in the midst of a custody dispute, with a family court judge faced with the difficult questions of whether there actually exists a mental health issue and, if so, how does it impact upon the child’s best interests under New Jersey’s custody statute.  While the “fitness of the parents” is a specifically enunciated factor under the statute, a parent’s mental state also interweaves its way through many of the other statutory factors.

therapist photo

What happens, then, when the parent whose mental status is in question is undergoing or has undergone some form of therapeutic/psychiatric treatment?  Is what transpired during the sessions relevant to the custody analysis?  Is the family court judge entitled to review and use such information?  Can the information be mandatorily disclosed to the other party and/or expert tasked with making a recommendation as to custody and parenting time?  Until now, the New Jersey Rules of Evidence provided that most communications between a party/patient and the mental health care provider are subject to an evidentiary privilege and, thus, the person holding the privilege can refuse disclosure.

The Supreme Court of New Jersey in Kinsella v. Kinsella, 150 N.J. 276 (1997), noted exceptions to the psychologist-patient privilege where the subject party effected a limited waiver of the privilege by placing his or her emotional and mental state in issue, and where a so-called “piercing” of the privilege is required in the best interests of the child.  The Court was careful in distinguishing between a “typical divorce custody proceeding” and one where a “parent’s capacity to care adequately for the child” is in question because of a mental stability issue (perhaps, for instance, the party was recently hospitalized due to a nervous breakdown).

There are many different types of mental-health care providers beyond a psychologist or psychiatrist, however, where the privilege of communications with a patient/litigant may come into play in a family court matter.  Inconsistency as to the application of such privileges, however, led to a recent amendment to the New Jersey Rules of Evidence that will take effect next year.

Specifically, on September 15, 2015, the Supreme Court of New Jersey adopted what is being referred to as a unified “Mental Health Service Provider-Patient Privilege” under New Jersey Rule of Evidence 534.  The Notice to the Bar describes the new rule as modifying or replacing “the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers.”  The rule is not exclusive to family court proceedings.

Generally, as even defined in the rule itself, a privilege means, in this context, that the patient (or the patient’s guardian/conservator, personal representative of a deceased patient, or if authorized by the patient, a member(s) of the patient’s family) has a privilege to “refuse to disclose in a proceeding, and to prevent any other person from disclosing confidential communications,” which are defined within the rule.  The mental-health service provider “shall” also claim the privilege unless otherwise instructed by the above-referenced people who may otherwise claim the privilege.

To that end, the rule specifically applies to “confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient’s mental or emotional health condition.”  Communications made between the below-listed service providers and victims of violent crimes are excluded from coverage under the rule and, instead, are examined under the “Victim Counselor Privilege” provided in New Jersey Rule of Evidence 517.

The rule defines a “mental-health service provider” as a “person authorized or reasonably believed by the patient to be authorized to engage in the diagnosis or treatment of a mental or emotional condition.  The rule, however, then interestingly covers many different categories of service providers that may or may not be typically thought of as being designated as providing treatment in the area of mental health:

1.  psychologists

2.  physicians, including psychiatrists

3.  marriage and family therapists

4.  social workers, including social work interns and certified school social workers

5.  alcohol and drug counselors

6.  nurses

7.  professional counselors, associate counselors or rehabilitation counselors

8.  psychoanalysts

9.  midwives

10.  physician assistants; and

11.  pharmacists

Looking beyond the broad list of mental-health service providers, what, then, constitutes a “confidential communication” under the rule?  The rule defines the term as “such information transmitted between a mental-health service provider and patient in the course of treatment of, or related to, that individual’s condition of mental or emotional health, including information obtained by an examination of the patient, that is transmitted in confidence, and is not intended to be disclosed to third persons.”

“Third persons”, however, contains its own exceptions.  Specifically, the communication, in order to be confidential, is not intended to be disclosed to third persons other than (1) those present to further the interest of the patient in the diagnosis or treatment; (2) those reasonably necessary for the transmission of the information, including the entity through which the mental-health service provider practices; and (3) persons who are participating in the diagnosis or treatment of the patient under the direction of a mental-health service provider, including authorized member’s of the patient’s family, the patient’s guardian, the patient’s conservator; and/or the patient’s personal representative.

The rule then provides eleven (11) different types of communication for which the privilege does not apply including, but not limited to, a communication that is relevant to an issue in a proceeding in which the patient seeks to establish his competence, or in a criminal matter where the defendant’s competence to stand trial is put at issue; upon an issue as to the validity of a will of the patient; or, as may be more likely applicable to the realm of family law:

“Made in the course of any investigation or examination, whether ordered by the court or compelled pursuant to Court Rule, of the physical, mental, or emotional condition of the patient, whether a party or a witness, with respect to the particular purpose for which the examination is ordered, unless the court order otherwise, and provided that a copy of the order is served upon the patient prior to the communication, indicating among other things that such communications may not be privileged in subsequent commitment proceedings.”

Finally, the rule provides that courts are not prevented from compelling disclosure of a confidential communication where (1) as oftentimes occurs in matrimonial matters, the patient “has expressly or implicitly waived the privilege or authorized disclosure; or (2) exercise of the privilege would violate a constitutional right.

There are a lot of moving parts to the new rule, but ultimately it is designed to provide consistency and ease of application to judges and practitioners when such privilege-related issues arise.  It will be interesting to see how its broadly defined terms apply in divorce matters and related custody disputes, especially when in many, if not most cases, family law practitioners will argue that the subject custody dispute is not merely “run of the mill”, so to speak, but merits disclosure of what may otherwise be shielded by this patient-based privilege.  In other words, the rule will undoubtedly become a major part of custody-based litigation.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of freedigitalphotos.net (attributed to Ambrose)

The New Jersey Supreme Court Enacts Rule 5:1-5, codifying Arbitration Procedures for Divorce Matters.

Posted in Mediation/Arbitration


Resolving issues pertaining to a divorce matter are not only costly and challenging, but if parties’ choose to litigate their issues before a sitting Family Part Judge, their dirty laundry becomes public record.

In order to resolve divorce litigation in a more private setting, parties have the choice of attending mediation and/or arbitration as alternative dispute resolution options. In addition to maintaining privacy, these alternative options usually bring matters to a resolution more quickly than the backlogged Court system is able to, and are more cost-effective. Further, given the more informal setting, there is usually a reduced level of conflict between the parties and attorneys.

When a Complaint for Divorce is filed, pursuant to New Jersey Court Rule 5:4-2(h), the first pleading of each party must include an affidavit or certification “that the litigant has been informed of the availability of complementary dispute resolution (‘CDR’) alternatives to conventional litigation, including but not limited to mediation or arbitration, and that the litigant has received descriptive literature regarding such CDR alternatives.” A copy of the Court-approved descriptive literature describing alternative dispute resolutions can be found here: http://www.judiciary.state.nj.us/notices/2006/n061204.pdf

With regard to arbitration, on September 1, 2015, the New Jersey Supreme Court adopted Rule 5:1-5, which applies to all Agreements to Arbitrate and Consent Orders to Arbitrate between and among parties to any proceeding heard in the family part, except: (A) the entry of the final judgment of annulment or dissolution of relationship; (B) actions involving the Division of Child Protection and Permanency; (C) domestic violence actions; (D) juvenile delinquency actions; (E) family crisis actions; and (F) adoption actions, which may not be arbitrated.

Fawzy v. Fawzy

The adoption of Rule 5:1-5 is essentially a codification of the 2009 New Jersey Supreme Court decision Fawzy v. Fawzy, 199 N.J. 456 (2009). In Fawzy, the parties agreed to resolve all matters pertaining to their divorce proceeding through binding arbitration. While the arbitration was in progress, the husband attempted to stop the proceeding and restrain the arbitrator from issuing custody or parenting time award. The Court denied the husband’s efforts to both stop the arbitration or restrain the arbitrator from ruling on custody and parenting time, and the arbitrator subsequently issued a custody and parenting time award.

The husband then sought to vacate the arbitration award and disqualify the arbitrator from ruling on the remaining issues of the matter, arguing that “parties cannot submit custody issues to binding arbitration because doing so deprives the court of its parens patriae obligation to assure the best interests of the child.”Fawzy v. Fawzy, 199 N.J. 456, 466 (2009). The trial judge denied the husband’s application, and the Husband appealed. The Appellate Division subsequently reversed, holding that “matrimonial litigants cannot submit custody issues to final, binding, non-appealable arbitration.” Id. at 466. The wife then filed a petition for certification to the Supreme Court on this issue.

New Jersey Supreme Court Justice Virginia Long issued an opinion holding that “within the constitutionally protected sphere of parental autonomy is the right of parents to choose the forum in which their disputes over child custody and rearing will be resolved, including arbitration”. Id. 461-462.

However, since the Arbitration Act does not require the recording of testimony or a statement of findings and conclusions by the arbitrator, in order to protect a parties right to challenge an arbitration award with respect to custody and parenting time, Justice Long additionally mandated that “a record of all documentary evidence adduced during the arbitration proceedings be kept; that testimony be recorded; and that the arbitrator issue findings of fact and conclusions of law in respect of the award of custody and parenting time. Without that, courts will be in no position to evaluate a challenge to the award.” Id.

Arbitration Procedure

As previously mentioned, all family law matters may be arbitrated unless they fall into one of the express exceptions under R. 5:5-1(a), which are listed above.

Once parties decide to resolve their matter through arbitration, R. 5:5-1(b) requires that several prerequisites be met. These are: (1) execution of the Arbitration Questionnaire; (2) execution of a Consent Order to Arbitrate or Arbitration Agreement; and (3) placement on the court scheduling Arbitration Track.

Specifically, with regard to the Agreement or Consent Order:

(A) Insofar as an Agreement or Consent Order relates to a pending family proceeding, the Agreement or Consent Order shall state:

(i) the parties understand their entitlement to a judicial adjudication of their dispute and are willing to waive that right;

(ii) the parties are aware of the limited circumstances under which a challenge to the award may be advanced and agree to those limitations;

(iii) the parties have had sufficient time to consider the implications of their decision to arbitrate; and

(iv) the parties have entered into the Agreement or Consent Order freely and voluntarily, after due consideration of the consequences of doing so.

(B) In addition, in all family proceedings involving child-custody and parenting-time issues, the Agreement or Consent Order shall provide that:

(i) a record of all documentary evidence shall be kept;

(ii) all testimony shall be recorded verbatim; and

(iii) the award shall state, in writing, findings of fact and conclusions of law with a focus on the best-interests of the child standard.

(C) Further, in all family proceedings involving child support issues, the Agreement or Consent Order shall provide that the award shall state, in writing, findings of fact and conclusions of law with a focus on the best-interests standard, and consistent with R. 5:6A and Rules Appendix IX.

As you can see, the subparagraphs of this rule have codified the requirements mandated by Justice Long in the Fawzy opinion, which protect a parties’ right to challenge custody and parenting time arbitration awards with a clear and concise record.

Take Away

It should be remembered that the new arbitration rule represents the minimum that is required by law to be in an Arbitration Agreement, and attorneys should be mindful of this when drafting Consent Orders or Agreements to Arbitrate. Clients should be fully aware of all of the issues that will or will not be litigated by the arbitrator, pursuant to the agreement, and the narrow scope of review that accompanies an arbitration award.  The more clear and concise the Arbitration Agreement is, the less likely it will be challenged by a disgruntled litigant who is unhappy with the award received.

Melancholy and the Infinite Sadness – Letting Your Emotions Cloud Your Judgment in Your Divorce

Posted in Divorce, Practice Issues

A recent client meeting reminded me of the iconic Smashing Pumpkins album – Melancholy and the Infinite Sadness.  In this meeting, you could just tell that the sadness and whatever other emotions the client was feeling, was clouding her thought processes and causing her to make bad if not self-destructive decisions.


This is not an uncommon phenomena that we see on a practically daily basis as a divorce attorney.  Sometimes the sadness has a paralytic effect, causing a party to take no action at.  Sometimes a party lives in an emotional purgatory, stuck if not alternating between the reality of proceeding with the divorce and holding out hope for a reconcilation that their spouse who says it isn’t going to happen (harkening back to Jim Carrey in Dumb and Dumber in response to Lauren Holly telling that there was a “.. one out of a million” chance of  dating him – “So you’re telling me there’s a chance… YEAH!”)

You see many iterations of emotions running the show.  How about the “I don’t want her but don’t want anyone else to have her” stalemate.  “I insist that the house be sold because he can’t live in the house without me or with that !?!?!??”  Or the other woman in marriage number one, being shocked and devestated when prince charming cheated on her in marriage number two.

More often, the emotion is anger that colors the divorce process.  In fact, it is common that anger permeates every decision.  I am not just talking about issues relating to children, where it is more natural or even understandable (but not necessarily right) for anger to color one’s judgment.  I am talking about money and property issues – including ones that are often clear cut.  How many times have divorce clients told their lawyers that they would rather pay their lawyer than give the other spouse a penny.    No matter how you try to dissuade that person, there are many who just wont listen.

So what is the solution?  There is no shame in seeking help and getting therapy.  Many have said that divorce is one of the greatest traumas a person can go through after losing a child or a parent.  Judges don’t penalize people for getting therapy.  In fact, many believe that seeking help and productively addressing the emotions is better than the alternatives.  If you aren’t one who believes in therapy, you are still better served, if you can, from trying to separate the emotion from the issues and trying to treat the financial aspects as a business decision.

I am not saying that someone going through a divorce should not feel mad, said, depressed, anxious, nervous, etc.  What you don’t want to do is act in a self-destructive way where you are punishing yourself in your attempt to punish you spouse.


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.

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

Destruction of Jointly-Owned Property Constitutes Predicate Act of Criminal Mischief; But What is “Jointly-Owned Property”?

Posted in Domestic Violence, equitable distribution

On September 9, 2015, the Appellate Division determined in  a reported (precedential) decision, N.T.B. v. D.D.B. (A-4542-13T2), that a spouse’s destruction of a door within the couple’s jointly-owned marital home constitutes the predicate act of “criminal mischief,” pursuant to N.J.S.A. 2C:17-3, thereby supporting a finding of an act of domestic violence.


The parties, husband, N.T.B., and wife, D.D.B., married in 2012 and had one (1) child, an eight (8) year old daughter. The parties resided together with their daughter in a home they purchased during their marriage and owned as tenants by the entirety (i.e. jointly owned as husband and wife).

In December 2013, N.T.B. filed for divorce, and as of March 2014, the parties were sleeping in separate bedrooms within the home. On March 30, 2014, D.D.B. was listening to music in her bedroom alone when N.T.B. told her to lower the volume. When D.D.B. refused to lower the volume, N.T.B. poured juice onto the speakers in an effort to silence them. When that did not work, he ripped the speakers out of the wall, brought them into the bathroom and threw them into the toilet.

The following evening, the parties engaged in an argument in the living room. D.D.B. and the parties’ daughter went inside D.D.B.’s bedroom and locked the door. Plaintiff attempted to open the door and when he realized that it was locked, he broke the door open “by slamming his body against it, splintering the door frame in the process.” After N.T.B. broke the door open, D.D.B. maintained that N.T.B. prevented her from leaving the bedroom, so she slapped him in the face in order to leave. N.T.B. maintained that he never prevented D.D.B. from leaving the room and that she punched him in the face without provocation.

The parties filed cross-complaints each seeking a Final Restraining Order (FRO) against the other. This wasn’t the first time the parties had been involved in a domestic disputes as prior to their marriage, N.T.B. previously obtained a Temporary Restraining Order (TRO) against D.D.B after she burned him with a curling iron.

D.D.B.’s complaint alleged that N.T.B.’s actions constituted both the predicate acts of criminal mischief (N.J.S.A. 2C:17-3) and harassment (N.J.S.A. 2C:33-4), thereby warranting an entry of an FRO against him. N.T.B.’s complaint alleged that D.D.B.’s action of striking him constituted the predicate act of simple assault (N.J.S.A. 2C:12-1).

The trial Judge determined that D.D.B. did not establish either predicate act and denied her request for an FRO. With regard to criminal mischief, the trial Judge concluded that D.D.B. failed to establish that N.T.B. damaged “the property of another” as required by the statute, because “the speakers and bedroom door [were] within the martial home that is shared by the parties, both appearing to be marital property,” The trial judge further held that D.D.B. failed to establish any of the elements constituting harassment.

Under N.J.S.A. 2C:17-3(a)(1), a person is guilty of criminal mischief if he “purposely or knowingly damages tangible property of another…” The trial Judge reasoned that since “the statute does not prohibit a person from causing damage to their own property”, D.D.B. failed to show that N.T.B. committed an act against the tangible property of another, thereby preluding a finding of criminal mischief.

D.D.B. appealed both the trial court’s decision that N.T.B.’s destruction of the speakers did not amount to criminal mischief and that N.T.B.’s conduct was insufficient to establish harassment (among other things); however, she did not challenge the trial Judge’s determination that the destruction of the bedroom door did not amount to criminal mischief and the Appellate Division chose to address this issue on its own accord.

With regard to N.T.B.’s destruction of D.D.B.’s bedroom door, the Appellate panel observed that the parties acquired the home during their marriage as tenants by the entirety.

A tenancy by the entirety allows spouses to jointly own property together as husband and wife, but neither they, nor their creditors, have the right to attach, encumber, convey or transfers their interest. A tenancy by the entirety includes a right of survivorship, so that upon the death of one spouse, the remaining spouse inherits the whole of the property. Therefore, under a tenancy by the entirety, each spouse owns an undivided interest in the whole of the property.

A tenancy by the entirety differs from ownership as tenants in common. Under a tenancy in common, all tenants have an individual, undivided ownership interest, which they may transfer, convey, encumber, etc.

The Appellate Court concluded that while “each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses”, “each co-tenant has a separate and distinct freehold title and each holds his or her title and interest independently of the others.” In light of this, the Appellate Division determined that N.T.B. and D.D.B. each held a separate and distinct interest in their home and therefore, N.T.B.’s act of breaking down D.D.B’s bedroom door did in fact destroy the “property of another” (due to D.D.B.’s undivided interest in the home) and he therefore committed the predicate act of criminal mischief.

The Appellate Division opined that to conclude otherwise would “permit a spouse to purposely and maliciously totally destroy his or her jointly owned marital home, without sanction, leaving no recourse for the innocent spouse to secure an FRO on the basis of the home’s ruin.”


The Appellate Division further disagreed with the trial court’s conclusion that N.T.B.’s act of pouring juice on D.D.B.’s speakers, ripping them out of the wall and throwing them in the toilet did not establish criminal mischief through damage to the “property of another”.

The Appellate panel noted that D.D.B. testified that the speakers belonged to her and were kept in her bedroom, while N.T.B. testified that the speakers were marital property since they were purchased during the marriage and were located inside of the home. However, the trial court did not engage in any analysis to determine whether the speakers were the “property of another” for the purpose of the criminal mischief statute.

The Appellate Division instructed the trial judge on remand to “make specific factual findings as to when, how and by whom, [the speakers] were purchased, for the purpose of determining whether [N.T.B.] enjoyed any tangible proprietary interest in them.”

To assist the trial judge on remand, the Appellate Division even went so far as stating that they “disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” To support this conclusion, the Appellate Court cited N.J.S.A. 46:3-17.2, “which recognizes the establishment of a tenancy by the entirety in personal, as well as real property.” This statute requires that “for acquired personalty to be considered joint property held by the entirety, the spouses must “take title to an interest [therein]…under a written instrument designating both of their names as husband and wife.” N.J.S.A. 46:3-17.2(a). “Absent evidence of such an instrument, the common-law prohibition against personal property being held by the entirety prevails.”

Parting Words

Does this decision intend to reach out from the realm of domestic violence law into the sphere of equitable distribution? Matrimonial attorneys routinely divide assets, real property, personalty, etc. based upon the presumption that same were acquired during the marriage, with marital funds, thereby making them “joint marital assets” regardless of title. It appears from the holding in N.T.B. v. D.D.B. that unless there is an instrument designating property as joint, all property acquired during a marriage, with marital funds, would purportedly belong to the possessory owner. Of course, as the trial judge was instructed on remand, specific findings must be made to determine whether another has a proprietary interest in the property. I can’t help but wonder how this decision may change the landscape of equitable distribution of marital assets.

Reflections On The Alimony Statute One Year Later

Posted in alimony

Today marks the first anniversary of new alimony law.  One year ago today, September 10, 2014, Governor Christie signed into law Bill A-845 which substantially amended the provisions of the New Jersey alimony statute – N.J.S.A. 2A:34-23.

The major changes to the law are succinctly delineated in the following alert by Eric Solotoff and Robert Epstein: New Jersey Enacts Alimony Reform Bill.

Some hailed the new law as marked reform, reflecting the changing attitudes toward spousal support that had swept some states in recent years.  Others felt that the statute didn’t do enough to address the real concerns of paying and payee spouses alike.

But what have we learned in the year that has followed?  Has the new alimony law really changed the practice one way or another?


Following the implementation of the statute, I received a flood of telephone calls and initial meetings from those wishing to modify their alimony obligations.  Many times, however, litigants needed to be reminded that the law does not apply retroactively.  Meaning, if you are paying permanent alimony on a 15 year marriage, ordered in 2010, you cannot now take advantage of the provision of the new statute that would have provided you with a limited duration alimony obligation under the same set of facts.

BUT – and this is a big BUT – the new law does have an effect if someone with an existing alimony obligation seeks modification of that agreement due to a changed circumstance such as a loss of income or retirement.

Personally, I am in the midst of litigating several cases under the new statute; some divorces, some dealing with retirement, and some dealing with loss of income of the paying spouse.

Below is a rundown of the three main areas in which I have observed the most changes in the way we litigate alimony cases:

Divorces. The duration of the marriage is now less of an issue during litigation. Whereas previously a marriage of 14 to 19 years may have arguably been considered “long term” and meriting of a permanent alimony award, now, any award of alimony in a marriage that is shorter than 20 years in duration cannot exceed the length of the marriage.

So get your math hats on everybody – there are numbers in this example.

If your marriage lasted 17 years, the alimony cannot exceed 17 years.  If it lasted 14 years, no alimony lasting longer than 14 years.  And so on…you get the idea.

I have also drawn upon the provision in the law that states that neither party has a greater entitlement to the standard of living (or a reasonably comparable standard of living) established during the marriage.  Instead, the Court needs to examine what both parties will have upon divorce.   The paying spouse’s ability to maintain the standard of living post-divorce was often overlooked before; now, it is more in focus than ever.

Loss of Income: A major area of litigation under the new statute is post-judgment litigation to modify due to loss of income or unemployment.  For the non-self-employed obligor, an application for modification may be brought after the party has been unemployed or not able to attain employment at the prior income levels for a period of 90 days.

The new law is clear: we can now bring applications sooner.

We also have more payee spouses producing their income information sooner.  The law now seems to require that the court to look at the payee spouse when the paying spouse’s initial application is being made.  Under the old law, a court would not even look at the supported spouse’s financial circumstances until the supporting spouse proved that he or she had indeed experienced a change in circumstance.

Retirement: Under the old statute, the retiree was expected to make his or her application and prove to the Court that a “change in circumstance” existed to warrant modification or termination of alimony.

It was then left to the Court’s discretion to determine whether or not there had been a “change in circumstance” such that alimony should be modified or terminated.

Not only that, but there actually had to be a changed circumstance before the application was made.

Practically, under the old statute, the litigant would first need to retire, live on social security and other retirement income for a steady period of time, and only then make their application.

The new statute allows our clients to go in to Court and seek a modification prior to retirement so that they don’t have to live on cat food before they can even come in to Court to make the application to retire.

As an attorney, it is often difficult to gauge the practical effect of any new law.  Not only do we need to litigate cases in previously unchartered territory, but we often need to await decisions from the Appellate Division interpreting the statute’s application before we get some actual guidance on grey areas of interpretation.

Of course, there are many other nuances of the new statute that now affect our day to day practice.  Over the coming years, I expect that the new statute will evolve and different portions will have greater practical effect than the ones mentioned here.

So happy paper anniversary to the new alimony statute.  Let’s see what this second year brings!


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


Promising the Stars to Get That Retainer or Keep That Client

Posted in Practice Issues

I am sure that every lawyer out there, divorce lawyer and non-divorce lawyer alike has had a prospective client in their office who was expressing positions that were off the wall and virtually impossible to attain.  For most lawyers, including us, it is a no brainer.  You counsel the client appropriately and let he or she know that their position is likely not sustainable.  For others, either because a lack of knowledge, lack of ethics, or the desire (or need) to make every last penny, or perhaps a combination of these reasons, they tell the client what they want to hear.  Perhaps it is the classic angel and devil on your shoulder – though for some, there is no doubt that he is going to tell the client what he wants to hear and do whatever the client wants him to do.  “Sure we can get you sole custody and supervised visitation.”  “You don’t want to pay alimony – no problem.”  “You don’t think you should have to divide the value of your business, I agree.”


I am not talking about esoteric issues, difficult but not impossible positions (provided that the client is counseled as such), attempts to make new law that are in good faith and based upon law and/or fact.  I am talking about the pure bad faith position that has no chance of winning because it is based upon neither law nor facts nor anything.  We are talking about conduct that could get a client or lawyer sanctioned, similar to that in Robert Epstein’s blog post from yesterday about the meddlesome family members driving the litigation.

I have recently had an adversary raise a conflict issue, that (1) his predecessor in the case refused to raise because it was not his client’s conflict; and (2) where he could not ever actually articulate what the conflict was.  Rather, the attorney filed the motion anyway because his client wanted it filed, to avoid his client suing him for malpractice.  In other words, he promised his client he would file the motion and was doing so, not because it was proper, but to protect his own (not the client’s) interests.

In another matter, an attorney got into an ostensibly settled case and his first letter admitted that while he didn’t have the file, when he got it, he was going to serve a discovery deficiency letter (even though his predecessor felt discovery was complete), not knowing whether there was a deficiency.  Clearly, to get the client, he promised a course of action not knowing and perhaps even though he knew it was not necessary.

At lunch today, I ran into a colleague that advised me that not only did an adversary file an application that had no legal or factual basis because that is what his client wanted him to do, but he also filed it on an emergent basis at a time where he knew his adversary was going to be on vacation.

On more than one occasion, I have been the second attorney in to a case where a reasonable client who didn’t know better, was promised an unreasonable result, and was disappointed by how the case was going.  The unreasonable client is shopping for someone to deliver the undeliverable.  The reasonable client just wants to hear it straight and move on from the debacle created but the unattainable promise made to get the client to retain.

As this is a referral business, the attorney who makes unattainable promises will not get referrals from disappointed clients.  There is a difference between getting a reputation for being a hard negotiator or taking difficult positions, and doing anything just because the client wants it.  The attorney who takes impossible if not unethical positions just to mollify a client will get a bad reputation with the judiciary and other lawyers, and eventually potential clients will find out too (though water finds its level and he will get other clients knowing he is willing to do the client’s bidding).    They may also get sanctioned and have ethics complaints filed against them as noted in the blog post referenced above.


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.

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

Back to School – Let’s Get Divorced

Posted in Divorce, Practice Issues

Every year, I blog about the New Year’s Resolution Divorce.  This phenomena, both anecdotally and statistically proven, is a good explanation for the spike in divorce filings after the beginning of the New Year.  Some articles have attributed it to a feeling of  “new year, new life”. Others have attributed it to a desire to turn over a new leaf to start over and improve ones life.


In our experience, this has proven true.  Also true in our experience is a spike in new divorces at the end of the summer, more specifically, just after the beginning of the school year. There are articles that anecdotally support this phenomena, as well.

This makes sense to me.  For many parents, the beginning of a school year seems to be a more significant new year than December 31st.  I am certain that many act at this time to not disrupt the children’s summer vacation and also, with the hope that the divorce will be over before the next one.  In any event, we have seen and are prepared for our client’s New Year’s resolution in September.  For their sake, we can only hope that resolution will be facilitated by the Fourth of July.


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.

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


Posted in Divorce

Unless you’ve been living under a rock these past few days, you have undoubtedly heard about the Calgary couple that used their divorce as an opportunity to nab a quick selfie.

Shannon and Chris Neumann looked like they were beaming as they exited the courthouse on August 27, 2015, just after filing for divorce.

divorce selfie

In the caption, Shannon explained that the couple had done something “extraordinary”:

“We have respectfully, thoughtfully and honourably ended our marriage in a way that will allow us to go forward as parenting partners for our children, the perfect reason that this always WAS meant to be, so they will never have to choose.”

“They’ll never have to wonder which side of the auditorium to run to after their Christmas concert or spring play, because we’ll be sitting together. They won’t have to struggle with their own wedding planning because we’ll be sitting on the same side of the aisle – THEIR side.”

In the days that followed the post went viral.  The couple has been receiving numerous accolades for being “inspiring”, with headlines like “Couple Posts Divorce Selfie with Inspiring Message” and “The excellent reason this ‘divorce selfie’ is going viral”.

But the divorce lawyer in me is just not truly convinced.  To be clear, I think that the Neumanns have the best of intentions; intentions to live a harmonious lifestyle post-divorce, with a fluid custody arrangement and little conflict. But intentions sometimes do not stand up to the rigors of divorce.

I think that’s a critical piece of the story that that Neumann’s selfie is not telling.  It’s like soon to be parents posting a pregnancy selfie with the following caption:

We have respectfully, thoughtfully and honourably decided to become parents.  We intend to always be parenting partners for our children so that they will never need to hear us fight about whose turn it is to change the fifteenth diaper of the day.

They will never wonder if mom or dad love them because we will never yell and we will tell them each and every day how lucky we are that they are in our lives. They won’t need to struggle to pay for college, because we’ll be rich.  Anyway, they’ll get full scholarships to Harvard because, well, genes.  Our handmade costumes for the spring play will be glorious, as will the cookies that we bake for all the children in town.

*Comment from all parents everywhere: “LOL”.*

We would be chastising those people as sanctimonious “know-it-alls” who really have no idea what parenting is actually like.

Well, divorce, like parenting, is hard work.

A garden requires patient labor and attention. Plants do not grow merely to satisfy ambitions or to fulfill good intentions. They thrive because someone expended effort on them.

– Liberty Hyde Baily

I have seen those couples in the selfies.  They have walked in to my office with the best of intentions.  But intentions require work.  And sometimes, intentions don’t really pan out the way you had envisioned, because life happens.  There is an argument about money, school, kids…the list goes on. Of course, divorce often magnifies problems, as the emotions of divorce make clear thinking extremely difficult.

That having been said, there are ways to minimize parenting conflict following a divorce:

  1. Make a detailed custody agreement – While an agreement can’t provide for every situation that may arise in the future, an agreement that provides for issues as children get older make it much easier to resolve many child related issues rather than going back to court and fighting about them later.
  2. Keep things factual – Don’t fight or complain just for the sake of it.  If there is an issue, explain it rationally and open a dialogue rather than flying off the handle and hurling insults. In short: choose your battles, keep things clean and don’t fight dirty.
  3. Work, work, work – Tensions run very high soon after the divorce.  Sometimes it dissipates, sometimes it doesn’t. Couples also work years to rebuild a co-parenting relationship, and then one dispute may send you back to your own personal dark age. Climbing out of conflict is hard and maintaining a civil relationship is even harder.  But put in the effort to resolve your issues and you will be glad you did. This may involve co-parenting therapy or the use of a parenting coordinator to help you to minimize conflict.
  4. Put the children first – This is what the Neumanns (laudably) aspire to do.  Even if you hate each other, go to the game, put on a smiling face and reserve the fighting for your 3 AM email exchange.  It may be difficult, but the children will thank you for it later.

The Neumanns are certainly starting off on the right foot.  They are committed, wonderful parents with the best of intentions.  I wish the Neumanns many more happy selfies along their co-parenting journey.


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