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Pertinent Information As It Relates To New Jersey Family Laws

APPELLATE DIVISION ADDRESSES INCLUSION OF EXTRACURRICULAR ACTIVITIES IN CHILD SUPPORT

Posted in Child Support

Many divorce or support proceedings involve the issue of who is going to pay for extracurricular activities.  Who is paying for sports?  Band?  Social clubs?  Art?  Drama and more?

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While settlement agreements commonly have a separate payment allocation for such expenses from the basic child support obligation – commonly in proportion to the parties’ respective incomes, the New Jersey Child Support Guidelines actually include predictable and recurring activities and lessons the category of “entertainment” in the basic child support obligation.

Entertainment” includes:  Fees, memberships and admissions to sports, recreational, or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Expenses that are not “predictable and recurring” should not be included in the basic obligation but, rather, should be shared by the parents in proportion to their respective incomes.  As can be read from the definition of “Entertainment”, it would seem that most extracurricular activities would fall into the realm of predictable and recurring.  Since application of the Child Support Guidelines is presumed, a court must explain why any deviation therefrom is appropriate.

In Elrom v. Elrom, a newly published (precedential) decision from the Appellate Division, the appellate court found that the trial court failed to explain why it deviated from the Guidelines by adding extracurricular activity costs as supplemental support.  There was no indication by the trial court – in requiring the parties to equally divide the payment for extracurricular activities beyond the basic support obligation – as to why such activities were to be separately paid for from the basic support obligation.  Put another way, there was no indication by the court as to why the activities at issue were somehow deemed other than predictable and recurring.  As a result, the Appellate Division ordered a limited remand to the trial court.

Thus, whether you are negotiating or litigating the issue of extracurricular activity payments, be sure to consider whether such activities are predictable and recurring and, thus, should be included in the basic support obligation, or whether such payments should be made separately therefrom.

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

Connect with Robert: Twitter_64 Linkedin

*photo by Bojans Cho Joo Young courtesy of freedigitalphotos.net

CUSTODY WITH PSYCHOLOGICAL PARENT DEEMED IN CHILD’S BEST INTERESTS OVER FIT BIOLOGICAL PARENT

Posted in Custody, Grandparent visitation

Custody disputes are often an emotionally trying process where litigants are advocating for what they deem to be in the best interests of the child caught in the middle.  Even with the opinion of a custodial expert and months, if not years of litigation, the decision is a difficult one for a trial judge to make.

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A custody dispute between two fit parents requires a court to determine the issue of custody based on the best interests of the child.  When the dispute is between a fit parent and a third party, however, only the “fit parent is presumed to be entitled to custody,” because the rebuttable presumption is that the child’s welfare will be protected.

A third party can overcome the presumption, however, by satisfying the standard required for termination of the rights of a non-consenting parent – unfitness, abandonment, gross misconduct or so-called “exceptional circumstances.”  This is a 2-step process:

  1. Application of the parental termination standard or a finding of “exceptional circumstances.”  Exceptional circumstances may be satisfied by establishing that the third party has become the child’s psychological parent.
  2. If the parental termination standard or “exceptional circumstances” component is fulfilled, the court must decide whether to award custody to the third party in the best interests of the child.

As part of Step 1, to determine if there exists a “parent-like” relationship between a third party and a child, the following 4 prongs must also be fulfilled:

  1. The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
  2. The petitioner and the child lived together in the same household.
  3. The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary].
  4. The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Only after this test is fulfilled under the “exceptional circumstances” option can the best interests standard be applied under Step 2.

In J.F. v. R.M., an unpublished (not precedential) Appellate Division decision, the biological father, was denied residential custody of the child in favor of the child’s great-grandmother despite him being deemed a fit parent.  Without getting into too much detail about the facts, the child lived with his maternal great-grandmother after his birth in 2007.  Dad was not involved in his life until 2011, claiming that he did not know the child was his son.  The mother lived with great-grandmother on and off for three and a half years before departing for good.

In early 2011, great-grandmother filed an action seeking custody of the child, which was granted.  She also sought to establish dad’s paternity and his obligation to pay child support.  Dad was granted “open and liberal” parenting time, and he exercised time regularly with the child, including overnights.

In later 2013, dad filed an application for full custody of the child.  Great-grandmother opposed the application, arguing that there was no basis for a change.  After a hearing, the trial judge denied dad’s application and recognizing that, because there was no allegation of parental unfitness or gross misconduct by dad, the law required great-grandmother to demonstrate the existence of “exceptional circumstances” – such as “psychological-parent” status to retain residential custody of the child as a non-parent.

After concluding that she was the child’s psychological-parent based on her bond with the child, and that the child used her as a parental figure even though he knew she was not his mother, the court then applied the “best interests of the child” standard in denying dad’s application.  In so holding, the trial court noted that because great-grandmother was deemed a psychological-parent to the child, she was held on equal footing with dad as a parental figure and, as a result, the best interests standard applied.  Ultimately, the court found no basis to change the custodial arrangement, despite noting that dad was doing “a great job as a father,” because there was no dispute that the child was doing great.

Dad appealed, arguing that great-grandmother was not a psychological-parent and, as a result, the trial court should have applied the “parental fitness” test, rather than the best interests standard.  The Appellate Division disagreed.  Primarily, he argued that he did not consent or foster the child’s relationship with great-grandmother under Step 1 of the psychological-parent test detailed above because he did not know for certain that he was the father.  The Appellate Division, however, noted dad’s concession to knowing mom was pregnant, he never sought to determine paternity until great-grandmother sought child support, and then 2 more years passed before he sought residential custody.  As a result, his actions/inactions were deemed “tacit consent” to great-grandmother’s relationship under the first part of the 4-part test.

Interestingly, the Appellate Division also found the fourth part of the 4-part test fulfilled as to the length of the child’s relationship with great-grandmother because parts two and three were fulfilled with the child living with her throughout his entire life and her being the primary caretaker.

As a result, the Appellate Division affirmed the trial court’s finding that great-grandmother was the psychological-parent and use of the best interests standard in denying dad’s application.  Custody disputes are very fact sensitive situations.  The facts and circumstances here were certainly of no exception in denying a fit biological father’s request for residential custody of the child.

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

Connect with Robert: Twitter_64 Linkedin

*photo by supakitmod courtesy of freedigitalphotos.net

VALENTINE’S DAY – A TIME FOR LOVE, LAUGHS, AND DIVORCE??

Posted in Divorce

It is that time of year – snow is on the ground (at least here in Jersey), the temperatures are bone chilling, football is over, many women are already lining up to see Fifty Shades of Grey and what else?  Oh right, Valentine’s Day, where men scramble for the perfect gift, the ideal box of chocolates, and something inspirational in a card to say other than “Happy Valentine’s Day.” I was reading a list of the top Valentine’s Songs the other day and “Endless Love” topped the list.  If you are going through a divorce or are already divorced, however, you likely want to delete this Diana Ross and Lionel Richie ballad from your iTunes account because Valentine’s Day need not be the reminder of better times that most think it should be.

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Instead, it can be thought of as a fresh start for the newly divorced, or a reminder that that you moved on from that previously bad situation.  Valentine’s Day is completely commercialized anyway, right?  Maybe you were waiting for the 14th to pass, or that huge blow up finally occurred that broke the camel’s back.  In fact, while most stories focus on the rise of divorce filings in January or in September after the Summer comes to a close, filings also rise soon after VD.  It may be more of the so-called “new year” effect carrying over into mid-February, where people first meet with attorneys and get their documents together in January, and then file before March.  I have also previously blogged about how divorce filings are actually at the highest point in March each year.  So either there is a trend, or divorce filings are simply higher at all times of the year except for the Summer when people are with their kids or traveling more frequently.

Being mentally prepared to move on with your life and cast aside memories of the annual gift of roses is critical.  Going through a divorce or a post-divorce matter is not just about getting your documents in order and having your lawyers draft vehement arguments and advocate in your favor.  Rather, it is also about being psychologically willing and able to stand up to the other person who will do everything that can be done to make a final termination of your relationship as difficult as can be.  This may go well beyond the litigation in and of itself.  Oftentimes, a therapist may be the right move to get you into the right frame of mind to move on with a healthier life from an unhealthy situation.

Valentine’s Day need not be about remembering the champagne, candy and teddy bears.  Rather, it can be seen as that true clean slate or fresh start that you need it to be.

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

Connect with Robert: Twitter_64 Linkedin

*photo courtesy of freedigitalphotos.net

WE CAN DO THIS THE EASY WAY OR THE HARD WAY

Posted in Practice Issues

“We can do this the easy way or the hard way.”  I tried finding the movie that this saying came from but it is in many.  For better or worse, this saying has become a recent mantra of mine – and not just with my kids.  In practice, I often tell this to clients and what it means, if the other side wants to resolve things (a particular issue or the entire case, if possible) in a reasonable and expeditious manner, we can do that.  On the other hand, if they insist on being reasonable, we can do that too. 

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Don’t get me wrong, sometimes/often you have to fight if not litigate an issue.  But sometimes you don’t.  Sometimes in the same case, there are going to be good faith, meaningful disagreements that may have to be decided by a judge, arbitrated or hashed out in several mediation sessions – and at the same time, there will be issues that are simply not worth fighting about and/or can be resolved easily with a little communication and a lot of common sense. 

Often, this silly skirmishes happen at the beginning of a case, when people don’t know the landscape or think that they have to prove something (“if I am soft now, he will run roughshod over me the whole case”).  Other times, people are disagreeable just to be disagreeable.  I recently had a motion where, though the other side previously consent in writing to several things, he opposed them just to oppose them to the court – even though he really didn’t oppose them when you parsed the rhetoric.

That said, doing it the “hard way” on things that should be done the “easy way” only serves to ratchet up emotions, hostilities and legal fees – often needlessly.  Again, I am not suggesting that you should not fight the good fight when it is necessary.  On the other hand, think long and hard if you want to endure the time, money and aggravation fighting over easily resolved issues or fighting just to fight.

Like I said, we can do this the easy way or the hard way – the choice is yours.

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

Connect with Eric: Twitter_64 Linkedin
   Photo credit: Copyright: <a href=’http://www.123rf.com/profile_abluecup’> / 123RF Stock Photo</a>

WHEN LESS THAN THE FULL AMOUNT IS PAID, WHO GETS TO DECIDE WHETHER IT WAS ALIMONY OR CHILD SUPPORT?

Posted in Alimony, Child Support, Practice Issues

What happens when a support obligor shorts his alimony and child support payments and then tax time comes around?  Of course, since alimony is deductible to the payor, he/she is likely to want to claim that most or all of the payments were alimony in order to get the deduction.  Inevitably, if the recipient doesn’t report the same amount as alimony on her tax returns, then the IRS will inevitably kick both tax returns.

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This was exactly the issue in Joseph L. Becker, TC Summ. Op. 2015-2 (Tax Ct.), a recent United States Tax Court opinion emanating from California.  In that case, the court determined that child support takes precedent.  Specifically, the Court held:

The parties do not dispute that any spousal support received by Becker would be considered alimony under section 71. The issue arises over how much of petitioner’s payments should be allocated towards alimony as opposed to child support. Petitioner admits that the amount he claimed on his 2011 tax return as an alimony paid deduction also included child support payments and so the amount would need to be adjusted accordingly. By his calculation, he paid $5,462 in spousal support and should be entitled to that amount as a deduction.

Petitioner does not take into account section 71(c)(3), which provides that where the payments actually made are less than the amounts specified in the divorce instrument for alimony and child support, then those payments are considered to have been made towards the child support portion first and will only be allocated towards the alimony portion once child support has been fully paid. See Proctor v. Commissioner, 129 T.C. 92, 94-95 (2007); Blyth v. Commissioner, 21 T.C. 275, 279 (1953). …

Simply put, if a support obligor pays less than the full amount of alimony and child support, the payments will be allocated by the IRS to child support first.  From a policy standpoint, this probably makes sense.

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

Connect with Eric: Twitter_64 Linkedin
    Photo credit: 123rtf.com.  Special thanks to Henry Rinder, CPA/ABV for sharing information about this case.

THE PERILS OF NEGOTIATING THE EQUITABLE DISTRIBUTION OF A PENSION

Posted in Equitable Distribution, Interspousal Agreements

As matrimonial lawyers, we often come across cases involving a pension that is subject to equitable distribution.  While New Jersey’s equitable distribution statute involves several factors for consideration in dividing assets, the most common way by which a pension is divided is, in legal speak, “50/50 of the marital portion.”  On its face, that seems easy enough, right?  The Order that is required to divide the pension, usually known as a Qualified Domestic Relations Order (QDRO), however, contains so many paragraphs of technical language that litigants generally assume is boilerplate, when it is anything but.

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In fact, the nuances can be such that lawyers often find themselves being disagreeable about provisions that they don’t even understand simply because it is easier to say “no” rather than take the risk that the division of the pension may be more equitable in favor of the other party.  To that point, while divorcing spouses are usually of the mind that they are equally dividing what accrued during the marriage, they do not usually understand terms like “survivorship,” or “early retirement supplements,” or “vested” or “unvested,” and on and on.  All they typically understand is that money will be paid out to them later in life from this asset.

That being said, if the goal is to really divide the marital portion 50/50 and ensure that each spouse gets his or her share, then why does this become such a heated discussion between lawyers.  Other than the “just say no” mantra that I discussed above, there are so many perils and pitfalls that can come into play.  I list a few of them here just as a guide for the unwitting, the unknowing, and, of course, the lawyers in the audience.  This blog entry does not go into great detail on each of the following terms, risks and rewards, but it certainly a primer:

1.  Accrued benefit – What is the accrued benefit?  Usually the QDRO will provide a formula to determine what it is, so it is important to determine what will be considered, how long the participating spouse has been in the pension plan, when the alternate payee is eligible to receive pension payments, and so on and so forth.

2.  Loans – Are there any pension loans?  If so, how are those loans going to be divided – is the alternate payee’s (the spouse who was not in the participant in the pension plan) share going to be impacted?

3.  Cost of Living Adjustments – Oftentimes the QDRO will provide that the alternate payee will receive a pro-rata share of any cost of living adjustments or other economic improvements made to the participant’s benefits.

4.  Commencement date of the benefits to the alternate payee – Certain limitations on the alternate payee spouse’s ability to receive payments may impact upon her overall benefit.  For instance, is the alternate payee limited to receiving benefits only when the participating spouse hits retirement age, or is there more flexibility afforded under the plan and the QDRO.

5.  Early retirement subsidies, interim supplements, temporary benefits – I often hear other lawyers take the position that this is a negotiable issue.  Ultimately, however, if the alternate payee is not entitled to this form of benefit, her payments could very well be negatively impacted should the other spouse retire early.  In other words, the alternate payee would not be receiving the full benefit of the bargain contained in the settlement agreement within the inclusion of this form of payment.

6.  Survivorship rights – Language regarding survivorship rights is perhaps the most important part of the QDRO.  What happens to the alternate payee’s benefit if the participant dies before he retires?  What about after he retires?  Are the alternate payee’s rights to the pension secured, or is all lost once the participant dies?  Oftentimes there is also a cost associated with ensuring survivorship payments in the form of an annuity.  Who is paying?  How much?

7.  Death of the alternate payee – What happens if the alternate payee dies after he or she starts receiving payments?  Does the benefit revert back to the participating spouse?  Does it go to the alternate payee’s beneficiary?

These are just a few points to consider, and I cannot tell you how many times they come up in negotiation.  Ultimately the alternate payee is simply looking to protect him or herself to ensure that the benefit agreed to in the settlement agreement is actually received, rather than reduced, lost, or whatever the case may be.  In fact, considering the amount of argument that occurs between lawyers over some of these issues, it is almost as if the phrase “50/50 division of the marital portion” is nothing more than a misnomer.

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

Connect with Robert: Twitter_64 Linkedin

*photo courtesy of freedigitalphotos.net

RELOCATION – WHAT DOES THE CUSTODY AGREEMENT SAY?

Posted in Custody, Property Settlement Agreements

The issue of relocation comes up all the time between divorced parents.  One day mom calls dad and tells him that she plans on moving with the kids from Hoboken to Cherry Hill.  Perhaps she plans on moving into Manhattan from Morristown.  Whatever the intention, there is going to be an impact on the child and often an impact on an existing custody and parenting time arrangement.

The moving parent often argues that the move will be in his or her own best interests and, as a result, it will also be in the child’s best interests.  The other parent often argues that the move can only be against the child’s best interests because he or she will have potentially have less time with the child, or the time will be somehow altered, and the relationship will suffer, as a result.  Cases on this subject examine both points of view.  This, however, does not make the process any easier for either party, or, more importantly, the child at issue who may even be too young to realize what is happening until it is already done.

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For instance, now mom and dad may live five minutes away from each other and everything has been going great from a parenting perspective since the divorce.  If dad has two overnights with Little Bobby every week, however, is that still going to be possible if mom is moving two hours away?  More importantly, is it still in Bobby’s best interests to travel back and forth for such a distance that frequently even if the time could feasibly still occur pursuant to the original schedule?  We have previously blogged that if the parent seeking to relocate is the primary residential custodian, the law makes it easier for an interstate (across state lines) or intrastate (within New Jersey) move than if there was a joint residential custodial arrangement, in which case the court will simply consider if the planned move is in the child’s best interests.

These legal standards often lead parents to include language in their custody and parenting time agreements addressing the issue of relocation.  While absolutely preventing some future move based on an agreement’s language may or may not hold up in court when the family judge is charged with analyzing a request based on its facts and circumstances in connection with the particular child at issue, the judge will still look at and consider the language mutually and voluntarily reached by the parties on the issue.

In Clemas v. Clemas, a new unpublished (not precedential) decision from the Appellate Division, the Court affirmed the trial court’s denial of a dad’s effort to restrain mom from relocating with the parties’ children from Bridgewater to Egg Harbor.  The divorce settlement agreement provided that the parties would share joint legal custody (over major decisions) of the kids, with mom designated as the primary residential custodian.  They also agreed to designate Bridgewater as the desired school district “so long as one party is domiciled in the district”, but that when “either party applies to the Court to convert the Divorce from Bed & Board into a Final Judgment of Divorce, this provision shall be null and void.”

When mom filed to convert the divorce into a final judgment, dad learned from the kids that mom planned to move and cross-moved to restrain the move to Egg Harbor (approximately two hours away).  The trial judge denied dad’s request to stop the move finding that, because mom was the primary residential custodian, she was permitted to move within New Jersey.

On appeal, the dad argued that the trial court should not have denied his motion because the settlement agreement provided that mom’s designation as primary residential custodian “is for child support purposes and does not give either parent and enhanced or diminished parenting authority to either party.”  On this point, the trial judge held that this language did not alter mom’s right to relocate but, rather, only impacted upon joint legal custody decisions.  The Appellate Division agreed.  The judge also held that dad failed to demonstrate “changed circumstances” infringing upon the best interests of the kids, and had identified no reason why the new school district could not accommodate the kids’ needs, or demonstrate that he would not be able to maintain the same parenting schedule or a “reasonable alternative.”

Importantly, the trial judge also held that the agreement considered mom’s possible relocation when the divorce was finalized because the kids were no longer required to attend school in Bridgewater.  In other words, the geographic restraint was only temporary and no other restraints were included.

The Appellate Court agreed that the agreement did not prohibit mom from moving with the kids, nor was she required to make an application with the family court to do so.  Analyzing the legal standard for a primary residential parent to move within New Jersey, the Appellate Court noted that to have a trial on the issue, the parent opposing the relocation must make a showing that “a genuine issue of fact exists bearing upon a critical question such as the best interests of the children, interference with parental rights, or the existence of a good faith reason to move.”  Dad did not fulfill this initial burden.  The move, as a result, was upheld.

This case ultimately addresses the importance of including language in a custody and parenting time agreement regarding relocation, which, as always, is dependent upon a given set of circumstances and, of course, whether you are the primary residential custodian, the parent of alternate residence, or a shared residential custodian with equal parenting time.

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

Connect with Robert: Twitter_64 Linkedin

*photo courtesy of freedigitalphotos.net

SUPREME COURT TO ISSUE DEFINITIVE RULING ON SAME-SEX MARRIAGE

Posted in Civil Unions and Domestic Partnerships, Cohabitants' Rights

Following its landmark 2013 decision striking down part of the Defense of Marriage Act as unconstitutional, the Supreme Court earlier today decided to take on what will likely be the definitive ruling on the issue of same-sex marriage.  By addressing the state-by-state divide on same-sex marriage, the Court will determine whether a state-imposed ban on same-sex marriage is unconstitutional.

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Specifically, the Court will be reviewing a Sixth Circuit decision upholding same-sex marriage bans from several states, which conflicts with four other circuit court rulings.  Arguments are expected to be heard in late April and a decision by the end of June.

Check back on our blog for more updates as they unfold.

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

Connect with Robert: Twitter_64 Linkedin

THE BENEFITS OF MEDIATION -EVEN IF YOU DON’T SETTLE

Posted in Mediation/Arbitration

Earlier today, Robert Epstein posted an interesting piece entitled The Psychology of Mediation.  Whether people like it or not, alternative dispute resolution (ADR) is here to stay as the new norm.  Court backlogs are long and trial dates are scarce, even when you want them.  Moreover, the system is set up to have numerous settlement events, from mandatory custody and parenting time mediation, to mandatory Early Settlement Panels (ESP), to mandatory economic mediation (post ESP), to Intensive Settlement Conferences (ISCs), to Intensive Settlement Panels (ISPs), to Blue Ribbon Panels, etc.

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 There are times when clients or other lawyers say that they don’t want to go to mediation because they feel it will be a waste of time because the case has no chance of settling.  In my experience, mediation very rarely is a waste of time.  Here are a few reasons why:

  • This may be the first time you get a settlement proposal from the other side, even if it is off the wall.
  • This may be the first time that you get a real settlement proposal such that even if you cannot settle at that point, you can start the process of moving the case toward settlement
  • You may find out what are real issues and what are fake issues.  In short, you may be able to narrow the issues is dispute.
  • You may find out what is really important to the other side
  • You may find out why things are important to the other side – the psychology of mediation so to speak
  • You may find out the proposed legal basis for the other party’s position for the first time.  If you don’t settle, you can use this as the opportunity to start building your defense.
  • You may find out the alleged factual basis for the other party’s position for the first time and similarly use this to figure out what proofs you need to defeat that position.
  • You can use the mediation to shut down bad positions – either because the other side finally sees that they are going nowhere, and/or the mediator tells them so.  Of course, this can lead to the creation of new theories of the case and new arguments that you will have to rebut.
  • This may be the first time that the other party (or your client too) is hearing a learned, non-biased view of their case.  There are times where I think that they other side is off of the wall and that it is the lawyer, not the client that is the problem.  In those cases, I may want to start mediation sooner rather than later so that the other party hears that there may be problems with the positions that they are taking.  Maybe this leads to that party getting new counsel or maybe it leads to them doing some more research to confirm what they learned from the mediator. 
  • Mediation can demystify the process and put people in a atmosphere where there is productive dialogue, about anything, for the first time in months. 
  • You may learn useful information that was previously undisclosed.
  • You may be able to resolve and get rid of the small issues, even if the major issues remain unresolved.

What is the take away?  Don’t be so quick to dismiss the possible of benefits of mediation, even if you don’t settle. the entire case. 

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

Connect with Eric: Twitter_64 Linkedin

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

THE PSYCHOLOGY OF MEDIATION

Posted in Custody, Divorce, Mediation/Arbitration

At its core, mediation is designed to be a process by which parties reach an amicable agreement through compromise.  This is what most litigants want, right?  Avoid the fighting, along with the associated time and expense – sounds great.  So what does psychology have to do with the mediation process?  Well, it can truly mean a lot whether a litigant wants it to or not, especially in custody and parenting time disputes.

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I am not referring to the psychology used to strategically mediate your matter into a better deal for yourself.  I am referring to the psychology of each party needed to determine, respect and understand where the other party is coming from.  I was once in a mediation where the mediator looked straight into the eyes of one party and asked if he respected the other party as a person or a parent – the litigant, without hesitation, said “no.”  When the same question was posed to the other party, she gave the same answer.  Not surprisingly, the mediation didn’t go well.  This should not mean that litigants need to respect each other for a case to settle.  Quite frankly, a lack of respect for the other person is not  uncommon in divorce matters, and may even be understandable, especially in matters involving adultery, extreme cruelty, and overall heightened levels of acrimony.  A respect and understanding for the other person’s position, however, can be extremely beneficial in getting a matter resolved in a fair and equitable manner for all involved.

So, when the mediator asks why you, as the litigant, would ever dream of taking a certain position and how it made the other party feel, this should not be taken as the mediator disagreeing with you.  Rather, it should be viewed as the mediator trying to understand where you are coming from and whether you understand why the other party may not agree and, ultimately, if the respective positions are fair and reasonable on that given issue.  This is certainly not the easiest thing to realize and it may feel like you, as the litigant, are being questioned under a spotlight by the person that you thought was supposed to be neutral.  It is best to keep in mind, however, that the mediator is there to act as a neutral and to bring everyone to a deal that makes sense and, to the extent possible, is in everyone’s best interests.

While many cases can simply proceed through mediation and settle without getting into this type of thought process, it can certainly help to take a step back and analyze the matter from a 1,000 foot bird’s-eye view to see where both parties are coming from.  As I indicated at the outset, this is especially true in custody and parenting time matters, where the emotions run higher than when the issue is strictly one of a financial nature.  This is not about liking or respecting the other person.  After all, you are getting divorced and trying to move on with your life for a reason.  Rather, this is about reaching a fair and amicable settlement that works for everyone involved.  If you can do that, then you are already one step ahead of the game towards resolving your matter.

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

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