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Pertinent Information As It Relates To New Jersey Family Laws

NEW JERSEY PASSES “FAMILY COLLABORATIVE LAW ACT”

Posted in Mediation/Arbitration

Overshadowed by New Jersey’s enactment of alimony reform, on which we have previously blogged and will shortly provide an update, on September 10, 2014 Governor Christie also signed into law the New Jersey Family Collaborative Law Act.  Collaborative Law is a form of alternative dispute resolution where, as described by the law, an attorney is retained “for the limited purpose of assisting his client in resolving family disputes in a voluntary, non-adversarial manner, without court intervention.”  In other words, the goal and stated intent by both parties is to resolve the matter without litigation, including the provision of full disclosure of information/documentation without the need for formal discovery.  We previously blogged on the positives and negatives of this form of dispute resolution, so the purpose of this blog entry is really to provide the highlights of the new law.

PEACE

As a general matter, a collaborative law process terminates if either party involved commences a proceeding related to the subject matter at issue (divorce, custody, etc.) other than for the court’s entry of a settlement agreement.  Parties and non-party experts or neutrals are protected from the disclosure of communications, similar to that covered in mediation, with various exceptions delineated in the law.  The collaborative law “participation agreement” must, among other things, be in a record, signed by the parties, state the parties’ intention to resolve the dispute through the collaborative method, detail the confidential nature of communications and applicable evidentiary privilege, and describe the nature/scope of the dispute, as well as how it commences/ends.

Interestingly, the agreement must identify the collaborative lawyer representing each party and contain a statement limiting the collaborative lawyer’s role.  The lawyer and lawyers in that same firm, if any, shall not continue to represent the party in that family law dispute if the dispute is submitted to a tribunal for adjudication.

To ”conclude” the process, the law provides there must either be a signed settlement agreement, or a termination of the process.  A termination occurs in one of many ways including:

1.  when either party gives notice in a record that the process has ended (with or without cause).

2.  a party files a document without the agreement of all parties that initiates a proceeding related to the family law dispute.

3.  either party is subject to, or obtains, a temporary or final restraining order against the other party under the Prevention of Domestic Violence Act.

4.  An action is commenced requesting that a tribunal issue emergency relief to protect the health, safety, welfare, or interests of a party or the defense against such a request is commenced.

5.  A party discharges a collaborative family lawyer.  If this occurs, or the lawyer ceases representation, the process continues if, “not later than 30 days after the date of notice of the discharge or cessation of representation is sent to the parties”, the unrepresented party retains a successor lawyer and in the amended collaborative law agreement, the parties consent to continue and the successor lawyer confirms representation of the party.

6.  A party fails to provide information necessary to address issues in dispute, and the other party chooses to terminate the process as a result.

7.  A family collaborative lawyer ceases further representation of a party.

The law takes effect on the 90th day after enactment.

THE TAKEAWAY

Any form of alternative dispute resolution can be a major positive over traditional litigation, especially considering the benefits of a private resolution from a cost, time and emotional standpoint.  Collaborative law is truly a great concept, but parties must be fully and completely reasonable, and willing to act in good faith with each other for it to truly work.  Two like-minded people – on an equal playing field without one party overpowering the other (financially, emotionally or otherwise) may be able to effectively proceed with the collaborative divorce process.  Other situations may not prove as ideal.

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Robert A. EpsteinRobert Epstein is a partner 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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WEALTH IN DIVORCE AND ITS IMPACT ON CHILDREN

Posted in Custody, Divorce, Visitation/Parenting Time

An article today on Time’s website discussed the findings of a study comparing the behavioral trends of children of divorce from wealthy and lower income families.   The study, which was conducted by researchers at Georgetown University and the University of Chicago, divided a sample of approximately 4,000 children into three groups by income.  Interestingly, the study also analyzed at what age children are most prone to behavioral issues following divorce.

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The report ultimately concluded that children of divorce from higher-income families exhibit greater behavioral issues than those of lower-income families, with the most likely group affected being that of the 3-5 year old age range.   Separately, custody-based research often finds that, barring other potential issues, children are better equipped to handle an equal, shared parenting arrangement as they get older.  The possible reasons for such signs seem to be more speculative than anything else – for instance, “dads, who are usually the breadwinners, often move out of the home so there’s a big dip in household income. Or it could be that the kids have to move to a new neighborhood/school/friend group and the instability takes a toll. Or maybe less-wealthy families don’t take it so hard.”  Notably, however, there was no definitive answer for such results, noting that income differences alone could not be the cause.  For lower-income families, one researcher noted that the quality of the home environment mattered most to “social and emotional well-being.”

Also interesting was the study’s conclusion that parental separation had no impact on kids ages 6 to 12.  As a threshold matter, 6 to 12 is a very large age range and, notably, the study does not seem to parse out exceptions, instead making a blanket statement that there was no impact.  Improvements in behavior were found in those wealthier children – older than age 6 – who assimilated into stepfamilies.  While the article does not delve further, perhaps this is because of the structure provided by a stepfamily unit.  This, perhaps, is also the basis for why children of married couples were found to be more impacted, or exhibit greater behavioral issues, than those of cohabiting parents.

Whether you as a parent need to take additional steps to address such behavioral issues depends on the given set of circumstances and, most importantly, your particular child.  Providing your child with love and support, and always telling them as much, is fundamental to being a parent.  Perhaps the issues, however, are merely a temporary adjustment to the end of the family unit that your child once knew.  Perhaps your child is just getting older and exhibiting signs that, ultimately, have nothing to do with the divorce at all.  Maybe there are issues at school with friends or teachers, or some degree of anxiety caused by another factor not previously considered.

Working with your former spouse to determine the best course of action for your child is ideal, putting aside differences between you for your child’s long-term benefit.  While not all parents agree to a therapeutic route, especially for younger children, it may be the most appropriate path.  There are many different types of therapy that can address a child’s behavioral issues, depending on the specific facts at issue.  For instance, if your child is acting out because he does not want to see your former spouse, or perhaps his relationship with your former spouse is truly damaged and in need of structured, therapeutic repair, a reunification therapist may be appropriate.  Perhaps the behavioral issues result from how you and your former spouse interact with each other.  With the emotional toll of the divorce now behind you, can you work together for the best interests of your children?  Maybe family therapy is needed, or maybe even just therapy for the divorced parents to learn how to work better together.  While sitting in a room with your former spouse may seem less than ideal, the positive impacts that may befall upon your kids could be invaluable and long-lasting.

THE TAKEAWAY

The results of this study are very interesting, especially when considered on the heels of my most recent post discussing divorce and income inequality.  Should your child exhibit behavioral issues after the divorce (or, perhaps, even during the divorce), it is critical that you take appropriate steps, preferably with your former spouse, to ensure that the child’s best interests are served both in the short and long-term.

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Robert A. EpsteinRobert Epstein is a partner 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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DIVORCE HOTEL – PARADISE OR PARADISE LOST?

Posted in Divorce, Mediation/Arbitration, Practice Issues

Some concepts never cease to amaze, especially when reality television is involved.  Promising an idyllic setting for a “quickie” divorce, the Gideon Putnam Resort in Saratoga Springs, New York, is welcoming couples who want to end their marriage while surrounded by golf courses, swimming pools, hiking trails and spa treatments.  While one can appreciate the calming influence that such an environment may have on an otherwise potentially emotional and stressful situation, I am not quite sure how playing a round of 18 holes is going to help.

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The way it works is as follows – for a flat $5,000 fee, the parties are lodged in separate rooms at the resort for the weekend and work with a mediator to reach a resolution and sign a settlement agreement.  The agreement is then sent to a judge, who enters the agreement to officially end the marriage.  Not only does the resort provide mediators, but lawyers as well.  It seems that additional experts may even be available depending on the circumstances of a given case.  Not surprisingly, some guests will participate in a reality television show, while others will keep private their marital dissolution.  Conceptually, the hotel even envisions having group dinners and sessions for multiple divorcing couples.

Whether this sort of arrangement will prove effective remains to be seen, but it does seem like something that would only apply to those looking for a quick out to their marriage, without any concern for who the attorney is, who the mediator is, who the expert is, and the like.  This, essentially, goes entirely against my prior blog entry about selecting the right mediator for your given case.  With any sort of complexities involved, this idea may unravel, no matter how good the massages are at the spa.

THE TAKEAWAY

Ultimately, the end of a marriage should not be treated lightly and it is imperative that the conclusion is reached with careful attention to detail and equity for both parties involved. Should things go wrong, what may seem like a great concept at a luxurious hotel may, instead, feel like a stay at the Overlook Hotel.

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Robert A. EpsteinRobert Epstein is a partner 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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THE RIGHT MEDIATOR – CHOOSE, BUT CHOOSE WISELY

Posted in Divorce, Mediation/Arbitration

Almost every client that walks through my door wants to know how quickly his or her divorce will last and how much it is going to cost.  The best answer that I can generally give is, “it depends.”  It depends on you and your spouse, it depends on the other lawyer, it depends on the facts and legal issues, it depends on the judge, it depends on the county.  So many factors come into play that there really is no definitive answer.  In connection with that inquiry, clients want to know about mediation, usually because he or she has heard that it is a cheaper and quicker way to bring a divorce to a conclusion - when can it happen? how much does it cost? will we have to litigate if we mediate? does mediating mean that my case will end quickly?  Again, there are no definitive answers to these questions because they largely depend on the same points I highlight above.

RESOLUTION

Mediation is an incredible tool by which to resolve a case, which is why New Jersey courts not only encourage it as a form of alternative dispute resolution, but actually mandate it as part of the divorce process, as well as include it in the Court Rules.  So, even if you happen to be a litigant who is against mediating, you pretty much have little to no choice – the court system will require you to mediate whether you like it or not, because it is almost always better for the parties to privately settle the matter than the court, almost always quicker, more affordable, and the like, not to mention that it removes your case from a very busy court calendar.  Notably, mediation also allows you to settle your case in ways that a trial judge could not ultimately rule following a trial – especially as to alimony and equitable distribution.

To that end, if the mediation process is going to have any chance of success, picking the right mediator is a critical piece of the puzzle.  Selecting a divorce lawyer who knows the mediators, knows their reputations, knows how they conduct themselves, knows how much they cost, and the like, can only benefit facilitating a resolution in your matter.  Do you want a divorce lawyer to mediate your case?  How about a former family court judge?  Does your case need a mediator with a strong, definitive hand, or is a softer touch more appropriate?  Each case is very different, and each requires a different considerations for mediation.  For instance, if your spouse is the type of person who is going to head into mediation with a “litigation mindset”, where there is no compromising, and mediation is really just a passing phase of a longer litigation, then having a tougher mediator may be the right way to go.  On the other hand, if everyone is largely agreeable and can act appropriately with one another, then a softer touch might be the answer.

I recently experienced the power of choosing the right mediator, in what had been a very acrimonious matter that I became involved with more than a year after its commencement.  The parties had already attended mediation before my retention, and it was a complete disaster.  Ultimately it had nothing to do with the quality of the mediator, but rather whether the mediator was the right fit for a given case.  This particular mediator, as part of his style, required that everyone mediate in the same room, which, for this particular case, was never going to work.  The parties did not speak to each other at all, the acrimony was high, and the chemistry was combustible.  The mediator also had a more free form manner, not having “crunched” the numbers, relying more on what the lawyers had to say for their client’s respective positions in formulating a course to proceed.  In many cases, being in the same room and applying this sort of settlement mechanism is perfect.  Here, it was the opposite.

Subsequently, we went to a new mediator and it was evident from the start that she was perfect for this particular matter.  A firm touch with an analytical approach, while allowing the parties to mediate in separate rooms, it was no surprise that we reached the material terms of an agreement in merely two half-day sessions.  My adversary and I both recognized how effective the mediator was under the circumstances, and how she helped facilitate a conclusion to what was a matter seemingly headed for trial.

THE TAKEAWAY

Almost all parties want to mediate their divorce matter to bring it to an amicable and affordable conclusion.  Selecting the right divorce lawyer, and the right mediator, however, are vital components to achieving that goal.

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Robert A. EpsteinRobert Epstein is a partner 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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SUMMER’S OVER – TIME TO FILE FOR DIVORCE

Posted in Divorce, Practice Issues

For the last few years, at the end of the year, I have reprised a very popular post that I did in the early days of this blog about the New Year’s Resolution Divorce.  We sometimes joke that the early part of the year is “the busy season.”  In fact, earlier this year, Robert Epstein blogged that March was found to be the peak time for divorce filings.

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In our experience, the end of the summer/early fall is the second busy season (I’m sure that the nearness in time to the Jewish New Year is purely coincidental.)  These are some of the reasons that we think or have heard this occurs:

  • We got through the summer which should be a happy time for the kids, and if we file now, there is a chance to be done by next summer.  As such, if kids have to move or change schools, it is not during the school year.
  • The long awaited summer vacation was miserable -not because of the location or accomodations – but because of the company.  As such, tensions are exacerbated instead of relieved.
  • Like New Year’s Resolutions, the end of the summer represents the beginning of the school year, the new football season, the new TV season (at least in the old days), back to school sales, etc.  I am reasonably sure that the same reason that people seek the fresh start at New Years is also true here.
  • If the marriage is shaky, spending so much time together could make it worse, as the reasons that it is shaky hit you in the face over and over during this time.
  • One spouse wont help out with the children on family vacations.  This reminds the other spouse that he/she doesn’t help out during the rest of the year either.  If he doesn’t even want to be with the kids on vacation, why are we staying together?

I am sure that there are may more reasons for this phenomena.  Whatever the reason, we await those who see the fall as a chance for happiness or a fresh start – or at the very least, for a chance to make next summer happy.

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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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MARRIAGE AT RISK IN TODAY’S ENVIRONMENT OF INCOME INEQUALITY?

Posted in Divorce, Practice Issues

In recent years, we have been repeatedly cautioned by government leaders and renowned economists that the wealth gap and income inequality in America is only getting worse.  As part of the widening gap, some experts describe a slow disappearance of the middle class, with individuals/families who formerly fulfilled that category now moving either up or down on the wealth scale.

Ultimately, experts conclude that the “rich getting richer” is not the sole source of such inequality, but also, among other factors, that many of the blue collar jobs once relied upon by middle class families to put food on the table have disappeared.  At the same time, many households now have two fully employed parents, and, an overall demand for more affordable products by that same middle class category leads to outsourcing jobs overseas – essentially, one cause perpetuating another.

piggy bank

These issues, among others, are discussed in “Marriage Markets,” (with a link to the NY Times review) a new book by two family law professors, June Carbone and Naomi Cahn that examines why the number of marriages are on the decline, while non-married families and single parents are on the rise.  The book argues that income inequality has led to a decline in marriages, as middle class and lower income American families can no longer invest as they once did in growing a household and in futures of their children.  By correlation, it should come as no surprise that families with greater wealth more often have more stable marriages than those families with lesser wealth, can better invest in themselves and their children, and, should the marriage go south, can better finance a potential marriage dissolution.

While parties seem more willing to move on from a marriage, especially now that every State has some form of “no fault” divorce option, and while the economy has seen improvement since 2008, people still come to me on occasion contemplating whether it is more cost effective for them to remain married – even if they have to live separate and apart.  This sort of decision is troubling in that it handcuffs a couple’s ability to divorce and move on.  From a legal perspective, there is also a strong argument to be made, based on case law in New Jersey, that assets and income continue to accrue and are subject to distribution even after the separation date – especially since New Jersey really has no true legal form of separation.

Similarly, a lack of financial resources may also hinder parties from properly addressing all issues in a divorce, especially as to children.  The cost of attorneys, experts, and the like can be overwhelming for some and, as a result, litigants will, for example, forego the use of an expert when the need for a forensic custodial or accounting analysis may be imperative to fully and completely address a given issue.

THE TAKEAWAY

While this blog post is less about specific law and practical tips, the primary arguments and underlying thesis of “Marriage Markets” are both interesting and relevant for the future prospects of marriage and divorce in our country.  The wealth gap continues to widen despite governmental measures taken to fend off its occurrence and has touched upon our world of family law in a way that has and will continue to impact how we practice and advocate for our clients.

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Robert A. EpsteinRobert Epstein is a partner 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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THINK TWICE BEFORE INVOLVING YOUR CHILDREN IN YOUR DIVORCE

Posted in Custody, Practice Issues, Visitation/Parenting Time

Many of you have heard the term “parental alienation.”  The term is a lightening rod and the accusation made all too often for conduct, while terrible, that is not parental alienation.  In fact, I have heard a few judges say that they get allegations of parental alienation in a large majority of their cases – creating a “boy that cried wolf” effect whereby judges don’t take seriously real alienation.

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That said, in many cases, what is being labled as “alienation” is the improper involvement of the children in one way or another.  Some times, the improper conduct is direct, and sometimes it is more insidious and indirect.  Here are some examples of improperly involving the children in the case.

  • Badmouthing the other parent to the children
  • Badmouthing the other parent in the children’s presence
  • Badmouthing the other parent in the community in a way where it could either get back to the children or stigmatize the other parent making their attendance at public events that the children are involved in uncomfortable.
  • Attempting to buy the children’s affections.
  • Telling the children that you give mommy all the money so you can’t buy them anything.
  • Telling the children that daddy doesn’t give you enough money so you can’t buy them anything.
  • Telling your children to go ask the other parent to buy them what they want because you can’t afford it.
  • Making the children messengers
  • Portraying your self as a victim, all of the time and in front of the children such that you are asking explicitly or making the children feel that they have to protect you, if not protect you from the other parent.
  •  Exhibiting so much anger for the other parent, in the presence of the children, such that the children feel that they have no choice but to be hurt or angry at the other parent too – not because they feel that way, but to not disappoint you (and/or because they feel that you will be angry at them if they don’t act the same way that you do to your spouse.)
  • Sharing adult information with the children.
  • Telling the children (or doing it in their presence) about your spouse’s indiscretions
  • Bad mouthing your spouse’s new significant other to and/or in front of the children
  • Empowering the children to make decisions that they have no business making and then saying you are abiding by the decisions that they children should not have been put in the position to make in the first place.
  • Telling your children that you would love to see them but the other parent isn’t letting you (when you are really down the shore with your new girlfriend)
  • Acting like the children’s friend instead of a parent
  • Appearing hurt if the children show affection to the other parent
  • Going overboard in telling the children that you will miss them and be sad without them before they go with the other parent on parenting time

I am sure that I can go on and on and I welcome readers and other family law attorneys to add to the list in the comments.

Some of the time, the parent is doing these things because they want to hurt the other parent.  Much of the time, they don’t realize or understand the potential damaging impact that such behavior, especially if repeated, can have.  You are a parent for a lifetime but childhood is fleeting and it is over before you know it.  Time wasted or worse yet time lost having to deal with the impact of this conduct can never be recovered.  Moreover, do not understimate the harm to the child and to the parent-child relationship.  In fact, I have heard that it is not uncommon for a child who has been affected by this in childhood, to turn on the guilty parent in adulthood when they gain perspective and see for themselves what that parent did to them.

As such, think twice before involving your children in your divorce.

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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 PRESUMPTION OF CUSTODY IN A DOMESTIC VIOLENCE CASE IS NOT DETERMINATIVE IN A CUSTODY CASE

Posted in Custody, Domestic Violence, Visitation/Parenting Time

In the domestic violence statute, there is a presumption that the abused should get custody.  In the custody statute, the prior history of domestic violence is simply one of the many factors that a court must consider.  There really has not been a reported case that addresses the confluence of these two statutes until July 28, 2014, when the Appellate Division decided R.K. v. F.K.

In that case, the mother obtained a Final Restraining Order (FRO) against the father in 2008 and was awarded custody subject to the father’s parenting time.  In 2010, a plenary hearing was held in the domestic violence action on the father’s application to change custody, which was ultimately denied.

In 2011, the father filed a complaint for divorce and hired a custody expert who opined: (1) “that Mother had “very significant psychological problems,” which jeopardized her “emotional stability as a parent,” were “likely to interfere with appropriate parental communication with” Father, were “likely to interfere with her parenting,” and could have “a very negative effect on her children.”"; 2) “that “[t]he current situation does not appear to be in the best interests of the children as a long-term plan.”";  3) that it was “inadvisable for Mother to continue home-schooling the children and 4) also recommended that Father and Mother split residential parenting responsibilities evenly.

After a seven-day trial, the court denied relief because it found no substantial change of circumstance, and because it relied on the presumption of custody in N.J.S.A. 2C:25-29(b)(11) of the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -33.

The Appellate Division vacated the decision, finding that the trial court “misapprehended the roles of both the change of circumstances requirement and the presumption.”

The Appellate Division noted that while the trial court applied a changed circumstances analyis, “…at a trial to determine custody, “the ultimate judgment is squarely dependent on what is in the child’s best interests.” Baures v. Lewis, 167 N.J. 91, 115 (2001).”  The Appellate Division noted that the two step process relative to change of circumstances (i.e. the threshhold showing of a changed circumstances to be entitled to discovery and a plenary hearing) does apply to custody cases.  That said, one a movant makes that preliminary showing, “…  the second-step hearing or trial is decided using “the same standard that applies at the time of [an] original judgment of divorce.”"

The Appellate Division noted that based upon the expert’s report which established a change of circumstances, an evidentiary hearing was warranted; i.e. the trial court correctly went to step two of the process making the finding of a lack of showing of a change circumstance a contradictory finding.  Put succinctly, the Appellate Division held:

Thus, the court was required to determine custody at that trial based solely on the best interests of the children. However, in its decision the court mistakenly relied on the lack of a “substantial change in circumstances.” The change of circumstances standard serves to determine whether a trial should be held, not to determine the result of that trial. (Emphasis added)

The Appellate Division went on to hold that, “The trial court also erred by relying in this matrimonial proceeding on the presumption used in domestic violence cases.”  The court noted that it is proper and within the statute to award temporary custody at an FRO hearing.  The court noted the rationale for this:

This presumption plays an important role in the initial DV proceedings, which must be conducted expeditiously, and in which custody is only one of many issues. See N.J.S.A. 2C:25-29(b). Further, this presumption reflects the DV Act’s finding “that there exists ‘a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.’”

In this case, the DV court awarded Mother temporary custody of the and the trial court assumed that the presumption still governed.  It did not because a different statutory scheme applies to custody determinations in divorce trials which are governed by N.J.S.A. 9:2-4, which addresses domestic violence as one of several factors requiring consideration.  The court further noted:

Allowing our family courts to weigh the seriousness of the history of domestic violence against the other N.J.S.A. 9:2-4 factors, rather than binding them with a mechanical presumption, better enables them to consider the best interests of the child in determining the vital issue of child custody in divorce, using their “special expertise in the field of domestic relations.” Cesare, supra, 154 N.J. at 412. In so doing, the court must consider “the safety of the child and the safety of either parent from physical abuse by the other parent.” N.J.S.A. 9:2-4.

The take away here is that if the court thought that there was no change of circumstances, then it shouldn’t have had a trial (though this too may have been reversed based upon the expert’s report – but I think it would be harder to show an abuse of discretion than an error in the law – which is what this reversal was based upon.)  Once it did, it had to apply the custody statute.  Since more than two years went by, the parties were allowed to  supplement the record to bring the court up to date.  That said, the father lost more than two years here that he can never get back – further showing the inefficiency of the system.

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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.

LITIGANT BARRED FROM APPEARING IN DIVORCE MATTER THROUGH DESIGNATED POWER OF ATTORNEY

Posted in Divorce, Practice Issues

A power of attorney can be a necessary, if not critical mechanism by which to accomplish certain activities in one’s life, where the person instilled with such power acts as an agent on behalf of the appointing individual.  For instance, elderly or disabled individuals often designate someone, often a relative, with a power of attorney to handle financial affairs, real estate matters, and even court proceedings.  Indeed, the appointee can do whatever he or she is allowed to do pursuant to the written POA, which can be tailored to a specific situation.  The written POA is signed by the appointing person, otherwise known as the “principal”, and the appointee, known as the “attorney-in-fact”, to “perform specified acts on behalf of the principal as the principal’s agent.”

Can a person be appointed, however, as an “attorney-in-fact” to act as the principal’s agent in a divorce proceeding?  Until recently, this question had gone unanswered in New Jersey case law.  From my own experience, I was recently involved in a matter where the family part judge barred a pro se litigant from having her father act on her behalf with a power of attorney.  As the litigant was competent, never claimed or was adjudicated as incompetent, and provided no basis why she should could not act or testify on her own behalf, the trial court found inappropriate the father’s claimed authority.

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In Marsico v. Marsico, the latest published decision from the Honorable Lawrence R. Jones, J.S.C., Ocean County’s prolific family court judge, the Court barred a litigant from appearing and testifying in a divorce matter through a designated power of attorney.  The parties involved in the divorce matter were each in their eighties, having been married for more than thirty years.  In December, 2012, husband executed a Power of Attorney (POA) appointing his daughter from a prior relationship as his “true and lawful attorney-in-fact” over his affairs, giving her a broad range of power to handle financial matters on his behalf, as well as “institute, prosecute and defend any actions or proceedings brought in any court.”

In responding to wife’s complaint for divorce, husband filed – but did not sign – an answer and counterclaim, which was signed, instead, by his daughter as his unilaterally appointed attorney-in-fact.  Wife logically objected, arguing that husband had not even yet been adjudicated as unable to act on his own behalf or otherwise incompetent.  She also argued that a potential conflict of interest existed since husband’s daughter had a potential interest in an ultimate disposition of the marital estate.

Prohibiting the daughter from acting on husband’s behalf, Judge Jones concluded:

As regarding an appearing party’s duty to render written certifications or oral testimony in a contested divorce proceeding, however, [New Jersey's Revised Durable Power of Attorney Act] does not expressly authorize one to delegate such duty to a third person. To the contrary, the court finds that a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order.

The court took particular issue with such efforts in the context of a family law matter, where “the entire factfinding procedure is heavily dependent upon the testimony of the parties themselves, and involves a focus on otherwise private issues, dealings and communications between spouses within the family structure.”  Indeed, the judge addressed the potential pitfalls involved, with a litigant “sidestepping” his obligation to testify, disclose certain information, undergo cross examination, and the like, as well as the agent’s lack of personal knowledge, all under the court’s watchful eye and analysis of credibility.

Such fact finding and disclosures, through certified statements from a litigant, come as early as the initial pleadings for divorce, the Case Information Statement, discovery responses, certifications in support of motions, depositions, testimony in court, and more.  Indeed, while not drawing conclusions as to the particular principal/husband in this matter, Judge Jones concluded, “Such power may potentially lead to serious misuse by parties who seek to employ such a strategy for inappropriate and improper purposes that are obstructive to the fact finding process.”

Cogently referencing the New Jersey Rules of Evidence, the court noted the requirement of personal knowledge with respect to the facts of a matter, where such facts could not be propounded by an agent without risk of same being incomplete or unreliable, or even a form of inadmissible hearsay.  The court even referenced the potential unauthorized practice of law through the appointment of an attorney-in-fact.

Notably, the court expressly excepted those situations where the litigant has already been judicially declared incompetent and thus, is unable to act on his or her own behalf, and the court has appointed a legal guardian, rather than the principal unilaterally appointing an agent of his or her own choosing.  The court also addressed those situations where there is no incompetency declaration and the person can largely function independently, but certain mental health challenges merit the appointment of a guardian ad litem to assist the party during a litigation.

THE TAKEAWAY

Marisco teaches us that the potential concerns raised by instilling an individual with a power of attorney preclude its use in a divorce or other family court matter.  There are several other ways to ensure your own protection as a litigant, whether it be through a guardian ad litem, declaration of incompetency/guardianship appointment and more.  As a litigant in a family court matter, it is otherwise incumbent upon you to be a part of the process, appear, testify and the like, no matter how reasonable the circumstances in which the POA was executed.

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Robert A. EpsteinRobert Epstein is a partner 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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CHANGING YOUR NAME POST DIVORCE

Posted in Divorce, Modification, Other

In my opinion, most people (typically women) decide whether or not to change their name to a maiden name at the actual time of the divorce proceeding, if not sooner.  The decision is a largely personal one and in my years of practice I’ve heard the gamut of reasons why to or not to change from the married name.  N.J.S.A. 2A:34-21 is the statute that governs legal name changes in our state.

Rarely do we see the courts chime in on this issue, because generally its quite mundane.  However, a recent published trial court opinion stemming out of Passaic county gives guidance on when is the appropriate time to make a request for a name change and how timing may be everything when it comes to this issue.

In the matter of Leggio v. Leggio, Mrs. Leggio filed an application with the family court seeking to change her name.  She provided the court with a copy of her dual judgment of divorce from bed and board entered in 2004.  Ten years later, she sought to change her name.

A critical point in this matter that cannot be overlooked is the distinction between a divorce from bed and board and a divorce.  New Jersey does not recognize legal separation for married people.  However, a divorce from bed and board has been considered by many to be the closest available option to a legal separation.  However, those who enter into a divorce from bed and board are not legally divorced and their marital bond is not dissolved. As an example, they can still remain on their spouse’s health and/or car insurance.  In order to become ‘divorced’, in the true sense of the word, from a divorce from bed and board, one party must file an application with the court seeking to convert their judgment into a final judgment of divorce.

The Leggio’s never did that.  So, when Mrs. Leggio came to the court seeking to change her name, the court looked to the statute which explicitly states, “The court, upon or after granting a divorce from the bonds of matrimony to either spouse…may allow either spouse…to resume any name used by the spouse…before the marriage…,or to assume any surname.”  This very language gives our courts authority to grant a name change incident to or after a “divorce from the bonds of matrimony”.  Because a divorce from bed and board does not dissolve the bonds of matrimony, the court held that a name change could not be granted unless and until a final judgment of divorce is entered.  The mere passage of time is insufficient.

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Sandra C. FavaSandra C. Fava is a partner in the firm’s Family Law Practice, resident in the Morristown and Roseland, NJ offices. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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