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NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

SINGLE PARENT TRAVELING INTERNATIONALLY THIS SUMMER? READ THIS FIRST

Posted in Practice Issues, Visitation/Parenting Time

You have planned for months.  You and your children are going to take the vacation to end all vacations this summer.  Well, the summer is here, but the whimsical dreams about lazing on the beach and hiking through the rain forest may be dashed if you don’t “know before you go.” Indeed, increased concern about international child abductions has lead the Department of Homeland Security and the State Department to institute certain policies and procedures for single parents travelling internationally with a child.  Parents should pay mind to these special considerations, particularly with your summer travel plans here at last.

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To that end, it is important to remember that more than a mere verbal agreement is required from your child’s other parent prior to travel, both when applying for a passport and at the time of travel.  Here is a quick primer of the type of information you may want to know before traveling:

Obtaining a Passport: 

  • Every child requires a passport for international travel, regardless of age.
  • Both parents must go with their child to apply and sign the DS-11 form in person. This form can be found on the Department of State website. If one parent is unavailable to accompany the child to obtain a passport, the applying parent may bring a notarized Statement of Consent from the other parent, which can also be found at the Department of State website as Form DS-3053.
  • If the other parent cannot be located, Form DS-3053 allows the applying parent to explain the efforts made to locate the other parent. It also permits the applying parent to provide proof of sole legal custody or proof that the other parent has been deceased, is incompetent or otherwise unavailable as a means to obtain a passport without the consent of the other parent.

 

Time of Travel: 

  • At the time of travel, it is recommended that the travelling parent travel with the same documentation he or she utilized to obtain the child’s passport, including evidence of parental relationship (birth certificate), photo identification, and evidence of United States citizenship.
  • It is also essential for the travelling parent to obtain a notarized consent letter from the other parent. The letter should include the dates of departure and arrival, as well as the destination.   Increased scrutiny may result if the travelling parent has a different surname than the child with whom he or she is travelling.
  • Because each destination country may have different requirements for entry or exit with a minor child, the travelling parents should inquire as to any additional documentation that may be required prior to departure.

 

NOTE TO PRACTITIONERS:  Practitioners should take note of particular concerns surrounding parents who may be travelling from abroad to exercise visitation or parenting time with children located in the United States.  Of the significance in that regard is the New Jersey case which made national headlines in 2011, Innes v. Marzano-Lesnevich, in which jury found a matrimonial attorney liable for $1.4 million for giving a client her daughter’s passport, with which the attorney’s firm had been entrusted to prevent the girl’s removal from the United States.  The state appeals court recently remitted the verdict by $442,000.  Due to these and other such concerns, suggesting that a passport of the child and/or the visiting parent be held for safekeeping at a local police department or by a third party neutral may be best practice when concerns with child abduction may exist.

Safe travels!

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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.

TO CONSENT OR NOT CONSENT, THAT IS THE QUESTION

Posted in Divorce, Practice Issues

When an attorney asks me to consent to an adjournment of a pending court date, deadline, or otherwise, I generally consent as a matter of professional courtesy unless there is a good reason not to (perhaps there is someone else who can fill in for the attorney who is familiar with the matter, or consent was already given on an earlier occasion in connection with the same court date and, quite frankly, enough is enough).  We as family lawyers have all stood in each other’s shoes on many occasions for better or worse, and also know that a family judge, or appellate court may not kindly view your refusal to consent to an adversary’s request (especially if the requesting attorney has a conflict or personal issue).  In other words, your client’s best interests may be negatively impacted if you DON’T consent.

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I recently concluded a case where the trial court advised me that I would have to file a motion to procure a form of relief that was actually sought by both parties.  Since a Consent Order would not suffice, I contacted my adversary to procure her consent to filing the motion and the relief sought so that I could note the consent in my paperwork and make it easier for the deciding judge.  The other attorney provided consent without hesitation.  It was, thus, astounding to me when, after I filed my motion, suddenly I received an opposition to my motion that – bizarrely – indicated that her client wanted the relief sought, but that my client had not fulfilled the requisite legal burden.  When I contacted the other attorney to ask why on Earth the opposition was filed, she indicated that she was just “following orders.”  Now whether that meant her client or a superior was unhappy that consent was provided and was calling the shots, I will never know.  The point, however, is that there was no reason not to provide consent when both parties wanted the same relief.  What should have been easy thus, became an issue of gamesmanship and unnecessarily increased counsel fees for both parties.  Proceeding in the manner that ultimately occurred only showed her client’s bad faith intentions and impacted her when the issue of counsel fees arose.

In another prior matter that comes to mind, I immediately consented when an adversary requested an adjournment of a court date because of his own personal issue.  My client had been waiting for the court date for quite some time, but the judge undoubtedly would have granted the adjournment request under the circumstances and only the client would have looked bad if I didn’t provide consent, especially because there was no one else to fill in for the requesting attorney.  Incredibly, I have had adversaries refuse to provide consent to my own adjournment requests under similar, if not far worse circumstances because the forest gets lost in the trees.  Even years later, we still remind the attorney in that earlier matter of his refusal to consent to an adjournment in that situation because of how unreasonable it truly was.

Ultimately, this is not simply about working with each other as family lawyers.  It is also about the clients and how certain actions that may seem harmless at the time can come back to bite both you and the client at a later date.  In other words, consenting could be about both professionalism and strategy.

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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

CO-PARENTING CALENDARS – I’M NOT YOUR SECRETARY – OR AM I?

Posted in Custody, Practice Issues, Visitation/Parenting Time

In the highly scheduled, some say overscheduled, world of suburban children, figuring out where they are supposed to be and when is a constant battle. It is hard enough to do in an intact family, much less in divorced families where the parties are tasked to co-parent.  I know this week, just the addition of end of school year parties and changes of other birthday parties due to weather or family emergencies has turned our week on end.  Add another level of difficulty when the parties’ communication is strained at best, horrific/abusive, at worst and/or if the parties live at great distance from each other. 37225363_s Some people willingly agree to use Google Calendar, Our Family Wizard, or some other website or application that allows them to keep a master calendar for the children activities, events, school events, birthday parties, Bar/Bat Mitzvahs, vacations, sports schedules, etc.  Others have a constant battle and ultimately need to be ordered to have a master calendar of some type. For the high conflict warriors, the next battle (there is always a next battle), is whose job it is to input the dates into the calendar.

The common refrain we hear from the parent of primary residence is “I’m not his secretary” or “he gets copies of everything.” In a perfect world, every coach, every teacher and everyone else, provides copies to both parents.  In real life, this never happens.

In a recent case, the mother (who either does not work outside of the home or works very part time) alleged in court papers that the father “gets copies of everything” then proceeded to tell of all of the things that she had to forward to the father because he wasn’t copied.  She then had the temerity to exclaim with exasperation or righteous indignation that as parent of primary residence, it was hard enough to keep the calendar straight.

That’s exactly the point, if the PPR can’t keep the calendar straight, what hope does the other parent have? In that case, the judge ordered the mother (again) to timely maintain and update the calendar.  In most cases, that is probably the logical call because in most cases, the PPR is the one that will first get most, if not all of the information, and more importantly, may be the only parent that gets the birthday invitations, last minute scheduling changes, will and other things not amenable to notice to both parents, as well as the fact that that parent will be scheduling the non-emergent medical appointments, etc.

Can their be a way to divide the work, especially where the parties have equal or almost equal parenting time, both work full time outside of the home, etc. or otherwise?  Sure.  Maybe one parent can be responsible for imputing the initial soccer schedule received at the beginning of the season and the other parent responsible for the initial football schedule that same season. That said, in most cases, one parent has to be primarily responsible or you can have a stalemate as to who is entering the dates.  If that causes the children or other parent to miss an event, how is that in the children’s best interests? _________________________________________________________

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_bobaa22′>bobaa22 / 123RF Stock Photo</a>

THE BEST DEFENSE IS A GOOD OFFENSE – EXCEPT WHEN IT IS NOT

Posted in Practice Issues

We have an adversary who loves to say, when responding to motions that we have filed, that the best defense is a good offense.  He has even taking to giving official attribution to the person that came up with that line.   The gist of the statement is that our client is going on the attack to divert from his/her own wrong doing.  But really what it is is a tactic to create a smoke screen.  If permitted at argument, I was prepared with a few quotes of my own (“the lady doth protest too much, methinks”; and “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck” both came to mind.)

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That said, here’s how it works.  Parent #1 makes an allegation that the parent #2 interfered with parenting time.  Parent #2’s response goes something like this, “In response to the allegation that I interfered with Parent #1’s parenting time, ADD ATTACK AGAINST PARENTING #1 HERE THAT IN NO WAY ACTUALLY RESPONDS TO THE ALLEGATION.  Put another way, instead of specifically addressing the conduct that was alleged to have been perpetrated, just say what the other party did wrong – or worse, that the other party does it too – so it is justified or some in some way okay.  What you have here is what seems to be a denial, but it is really a non-denial or a some type of two wrongs make a right justification.

That is, until you point out, if you even have to, that the specific conduct was never denied.  Don’t assume that the judge is going to pick up on it – be prepared to point it out.  Be prepared to actually quote the specific response.  Judges expect parties to spin facts.  They don’t like to be lied to and don’t like it when parties or lawyers sidestep issues.  This happened just recently in a case and the judge made a point of saying that, when you read the papers carefully, this is the unusual case where the allegations really weren’t denied – just before she came down hard on the parties.

The bottom line is that quotes and other fancy tricks are great, except when the court actually cuts through the morass and realizes that you didn’t actually deny what was said.  Have fun then.

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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

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THE REAL REASON FAMILY COURT JUDGES SHOULD BE EXTRA SENSITIVE TO THE LITIGANTS THAT APPEAR BEFORE THEM

Posted in Practice Issues

Part of my passion (some say illness) for what I do is to read almost every new case that is decided – whether it is precedent setting (reported) or not (unreported).  I am always looking for an interesting take on an issue, or to be reminded about some nuance of the law, and otherwise, sometimes just for wonderment about how people act toward each other. Today was no different.  I was reading a new reported decision, P.M. v. N.P. that was decided today.  The case is about the potential recusal of a trial judge when their law clerk gets hired by the attorney for a litigant in a contested case before them.  This post is not about that case, which while interesting, you can read for yourself.

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Rather, tucked away at the end of the opinion was a quote and a paragraph reminding judges, and perhaps us all, why these cases are so emotionally charged and more importantly, why family court judges must be particularly sensitive to the litigants whose lives are in their hands.

Judge Fuentes gently reminded us all of the following:

Matrimonial cases present particular and unique challenges to the judiciary. These cases are often contentious because the nature of the controversy strikes at the very core of one of the most intimate of all human relationships. As our colleague Judge Donald Collester, Jr. eloquently noted:

“[S]omething . . . goes to the essence of marriage and is probably best left to poets rather than judges. It is the reason that people do get married. For marriage changes who you are. It gives stability, legal protection and recognition by fellow citizens. It provides a unique meaning to everyday life, for legally, personally and spiritually a married person is never really alone. Few would choose life differently.”  [Lewis v. Harris, 378 N.J. Super. 168, 220 (App. Div. 2005) (Collester, J., dissenting), aff’d in part, modified in part, 188 N.J. 415 (2006).]

Given this exalted place marriage as an institution occupies in our society, litigants embroiled in the legal dissolution of their union are often emotionally traumatized. They bring to these legal proceedings a deep sense of disappointment and an element of distrust that is rooted in the nature of the dissolution itself. Our Supreme Court has consistently recognized that judges who sit in the Family Part have a great sensitivity to these concerns and bring a high level of expertise to these emotionally fragile matters. (citations omitted) We thus expect our colleagues who sit in this legally difficult and emotionally demanding Part of the Chancery Division to be especially mindful of the challenges associated with this assignment. (Emphasis added).

We have all heard of the phrase, “there’s a fine line between love and hate.”  Many times, judges get angry and frustrated with parties to a divorce or any family court proceeding, because of the level of hostility and the intensity of the conflict.  Believe it or not, sometimes the lawyers do too.  The next time we feel that way, we should remember Judge Fuentes’ reminder and take it to heart.

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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

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PARENTING CONFLICTS WHEN SCHOOL IS OUT FOR SUMMER

Posted in Custody, Visitation/Parenting Time

The Summer season can truly be the best time of the year with the kids out of school, great weather, barbecues, pools, baseball and more.  Divorced parents, however, often experience stress and conflict at a time when they really just want to sit back and unwind.  For those parents, here are a few of the familiar issues that may arise and how to potentially address the situation based on your given case:

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1.  Camp – By now most parents have determined whether, and where the kids are going to camp, whether by agreement or court order.  The last time I checked, sleep away camp is typically running upwards of $10,000 per Summer, per child, and this rite of passage for some kids can prove to be a major financial issue for discussion.  Even day camps can run upwards of $6,000 per child, per year.  A few years ago when faced with the issue of who was paying for camp and for how long the kids should go, I remember a trial judge asking when did kids stop going to the sandlot by themselves and not returning home until dinner.  Probably around the same time they stopped riding bikes outside by themselves.  Nevertheless, this is often an issue for a mediator to help settle and, if unsuccessful, for a judge to decide on a motion.

2.  Parenting time and vacations - Agreements usually provide for what the parenting time schedule will be when the kids are home from school and not away at camp.  I’ve been involved in cases where the parents literally negotiate not only each and every day to ensure that neither has more days than the other, but even who will be driving the kids back from sleep away camp.  On the flip side, many arrangements are defined by flexibility.  In the event of a dispute as to such issues, a parenting coordinator or mediation can facilitate a cost efficient and expedient resolution, as opposed to filing a motion in court that will cost thousands of dollars for each party and may not result in a decision until the Summer is almost over (if not already over).

3.  Work-related child care – Child care issues seem to increase during the Summer, especially if the kids do not go to camp.  The required child care time and cost may, as a result, substantially increase.  Perhaps, during the Summer, a different kind of child care is necessary in a given case, such as an au pair or a nanny, as opposed to a before or after care program utilized during the school year.  Maybe the au pair or nanny is needed for an increased number of hours.  Agreements should provide for such a payment allocation and arrangement to avoid conflict in such situations, but many times a judge will ultimately be faced with an issue to decide regarding Summer work-related child care no matter what the agreement provides.

These are just a few of the issues that may arise during the Summer months.  Ultimately the goal is to reach a resolution, if possible, but oftentimes a judge is called upon to make the final decision.  Addressing these issues in a settlement agreement, to the extent that they can be addressed, may help you avoid the Summertime Blues and bask in the sunshine.  If conflict “rains”, however, it is best to consult with experienced matrimonial counsel before it is too late and school is back in session.

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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

Divorce is like a Snowflake – No 2 are alike

Posted in Divorce

Recently I met with a new client who brought a close friend who had also been divorced to the meeting. Not surprisingly, I heard much about the friend’s divorce during the meeting, and it was clear that the client’s expectations were influenced by his friend’s story.

Thomas Kida, in his book, “Don’t Believe Everything You Think,” notes that anecdotal evidence is a significant factor when we make decisions.  Much of the reason for this is because we like personal stories.  People will believe a theory that is accompanied by a personal story, often in the face of scientific evidence refuting it.   Lawyer’s make much of the phrase, “managing expectations,” which is something we do every day as we try to give our clients a reasonable picture of what to expect. Yet, it is much more than that.  People believe things that they can relate to, and a close friend’s experience is generally easier to relate to, and comforting.  Compared to the unknown of their own situation, it is reassuring to align with the known outcome of the friend’s experience.

The fact that the friend also had a wife, and also had children does not mean that the client’s outcome will be the same or even close.  This can be a problem for the lawyer, particularly when the client perceives his friend’s outcome as a positive one.

Communication at the outset of the case is critical for both attorney and client so that there are reasonable expectations moving forward.  No attorney has a crystal ball, but can only make educated guesses, based on accurate ad realistic information from the client.  The case law will give the courts guidance as to how facts are to be applied in a situation.  For example, when determining if a spouse is entitled to alimony, there are numerous factors that have to be considered, and a court will give more weight to some than others based on the facts of that particular family.  In one case, the absence from the job market for a period of years may hold significant weight for the court, and in the next case, not much at all. This can depend, for example, on the type of skills the worker has, the amount of time it will take for the worker to “get back up to speed,” and any child care responsibilities.  Similarly, the valuation of a business can vary greatly depend on the type of business, the income it generates, and its volatility in the market.

Walking away from preconceived notions based on other people’s stories is the best thing a client can do when embarking on a divorce.

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or at jmillner@foxrothschild.com.

Imputing Income for Interim Support at the Beginning of a Divorce

Posted in Alimony, Child Support, Divorce

The issue of interim support payments comes up in almost every divorce matter.  The law requires that the so-called “status quo” that existed during the marriage be maintained to the extent possible, but what does that even mean when there may now be two households to support, litigation expenses, and other costs that were never a part of the marital lifestyle?  Who is going to pay the mortgage, the utility and car bills, and what about personal expenses for each party and the children, if there are any?

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The analysis is by no means an exact science, as each spouse is required to complete a form entitled a Case Information Statement, which details the parties’ incomes, assets, liabilities and, perhaps most infamously, monthly budgets.  Almost inevitably, the trial judge will be presented with budgets from the payor spouse that are as conservative as can be in an effort to pay as little as possible, while the payee spouse will try to present a lifestyle that is as liberal can be in an effort to receive the highest payment possible.

While the Family Court is often presented with limited information and competing affidavits upon which to base an interim support award, one critical question that comes into play is what incomes should be utilized for each party.  For a W-2 wage earner with a consistent annual income, the answer is easy.  For a business owner who may filter personal expenses through his or her business, the answer is more complicated.

How about the issue of what income to impute to a dependent/payee spouse who, perhaps, did not work for a period of time during the marriage or leading up to the interim support application now before the Court?  This was the issue in Maine v. Maine, a recent unpublished trial court decision that follows on the heels of the Appellate Division’s 2013 decision in Gnall v. Gnall.  After conducting a detailed analysis, the court held:

[w]hile additional income may be imputed to a party at the beginning of a case, the analysis logically and equitably extends beyond mere referral to the New Jersey Department of Labor statistics for “average” incomes in certain professions and localities.  Rather, factual circumstances may require consideration of other important pendente lite factors as well, including a party’s need for a reasonable period of transition to seek and obtain employment matching his or her skill set, education, and experience (with a footnote expounding that “This point is particularly relevant when a party has education and training in a field, but little or no actual work experience in same.”)

The parties were married for 20 years before Wife filed for divorce.  Shortly thereafter, she filed a motion for interim alimony pending trial and a conclusion of the divorce proceeding.  Wife represented that Husband was the primary wage earner during the marriage, and Wife was a part-time school custodian earning approximately $10,000 annually.

Husband argued that Wife should be “imputed” $32,400 in gross annual income, a substantially higher income than the $10,000 she was earning because, towards the end of the marriage with the Husband’s acquiescence, Wife used joint marital funds to attend and graduate from a medical assistant training program.  The Husband relied on the New Jersey Department of Labor statistics for a medical assistant’s annual income in support of his position.  Husband also argued that while Wife worked briefly as a paid intern during her training, she never obtained further work in the field.  Instead, she voluntarily obtained and maintained employment as a part-time custodian.  Wife responded that she tried, but failed to successfully obtain a position in the medical assistant field, which was why she argued she was working as a custodian.  As a result, Wife indicated that it was fair that she be imputed her custodian’s salary on a full-time basis, which projected to approximately $23,000 annually.

In addressing the income imputation issue to Wife, the court noted:

In the context of a pendente lite support application, a court has reasonable discretion to impute income to a supported spouse by considering what he or she can reasonably earn with due diligence, irrespective of whether the supported spouse is actually earning such income at the time.

Following in Gnall’s footsteps, the court noted that while it could refer to the Department of Labor wage statistics to impute income, but that such a limited review failed to consider whether the subject spouse could instantly earn such income, without any reasonable period of transition at the start of a divorce proceeding.  The court added:

Such period of transition may not only be fair and reasonable, but financially critical if a party is expected to seek and find an open and available position paying an “average” or even “beginning” salary.  The potential inequity of imputing income without any reasonable transition time becomes even more pronounced when, as in the present case, the party has little or no recent work experience in a particular field, notwithstanding prior training or education.

. . .

Therefore, for pendente lite purposes at the start of divorce litigation, a spouse with little or no recent work history may equitably need a reasonable period of time to convert imputed income into actual income by searching diligently, in documented fashion, for employment and a salary where he or she can earn anywhere near what an average or even beginning employee may earn in a particular position.

In other words, if a court is going to impute income without a reasonable transition period in connection with same, there must be an evidentiary basis for doing so, which may be difficult when contained in competing certifications in support of a motion addressing interim support issues.  Interestingly, the trial judge noted that a person who loses a job cannot just find a replacement position with the “snap of the fingers,” although the burden upon such a person to procure a support modification under such circumstances seems far more difficult.  As a result, the court posed the following questions for consideration:

A) Is it reasonable and realistic to expect one to immediately obtain a particular job in a specific field, and if so, at what level of compensation (“average” vs. another level, based upon experience, education, training and nature of skill)?

B)  How long has the party been out of the work force?

C)  What documented efforts has the party made to find work, and in what fields and positions?

D)  What compensation, if any, has the party personally and historically earned in a particular position or field, and for what duration of time?

E)  Is retraining reasonably necessary, and what is the estimated time and expense involved?

F)  Does the party have daycare responsibilities for minor children, making an immediate return to full-time employment financially impractical after considering the estimated cost of work-related day care services?

Based on the above analysis, the court imputed to Wife, on an interim pendente lite basis, $23,000 in gross annual income, which equated to her present part-time income imputed on a full-time basis.  The court also provided Wife with a 4-month transition period to demonstrate documented efforts to seek and obtain employment at a higher level of income as a medical assistant or otherwise.  As is always the case, such determinations were subject to modification after further discovery, presentation of proofs, and the like.

The court’s analysis is consistent with that found in Gnall.  Whether one agrees or disagrees with the analysis is likely going to depend on whether that person is the supported or supporting spouse.  Ultimately, the court appeared to reach a middle ground, finding that both parties were right and wrong in their respective positions.

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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

 

 

MAKING THE RELEASE OF THE DEPENDENCY EXEMPTION CONDITIONED UPON THE RECEIPT OF THE CHILD SUPPORT DUE

Posted in Child Support, Practice Issues, Tax Exemption

One of the issues to resolve in a divorce cases is the allocation of the dependency exemptions. While the IRS says that they should go to the custodial parent, by and large, states, including New Jersey feel that they can allocate the exemptions between parents and there is case law to that affect.

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In most cases, there is either the blind division/alternation or the unnecessary, if not absurd, fights about the allocation of the dependency, often because no one has taken the time to see what they are really worth to the parties.  The high six or seven figure earner demanding the exemptions when he or she gets absolutely or virtually no benefit from the exemption, or worse yet, the other parent who would get a real benefit not fighting for it the cases.  High income earners phase out of the benefit of exemptions under the IRS code but that doesn’t stop them from fighting for them and/or from the court automatically dividing or alternating them.  I have seen this occur even when we have demonstrated the lack of benefit.

That said, should you be entitled to claim the exemption if you have not paid all of your child support during the year?  Many people would argue no. There is finally a case that you can cite to that stands for this proposition – specifically, Zeitlin v. Zeitlin, which is Judge Jones’ unreported (non-precedential) opinion dated December 19, 2014 that was released on or about May 25, 2015.  The Judge gave three reasons why the court may suspend a payer’s right to claim a child dependency exemption if there are child support arrears which remain unpaid at year’s end.  This was the case even though parties’ settlement agreement does not explicitly contain a provision “… directly conditioning the child dependency exemptions upon his concurrent duty to stay current on his child support obligation.”  This author thinks that this should be implicit in any event.

The court agrees and that was first reason given.  Judge Jones noted:

First, even though the parties’ settlement agreement does not expressly state same, the court finds that there is logically an implicit relationship between the child dependency exemption and the parental child support obligation. In this case, defendant’s right to claim a child dependency exemption is inherently and equitably intertwined with his duty to pay child support. The concept of a non-custodial parent receiving a child dependency exemption is generally based on the presumption that such parent is in fact financially supporting the dependent child or children, in a manner mandated under a court order or otherwise agreed by the parties. If, in such a case, the non-custodial parent breaches the child support order and accumulates substantial unpaid arrears, then the very foundation for that parent’s right to share in the tax exemptions collapses. For this reason, even when a divorce settlement agreement contains no language directly linking the non-custodial parent’s right to claim the tax exemption to faithful payment of an existing child support obligation, then absent clear evidence to the contrary, a court of equity may infer the natural existence of such a relationship of common sense and fundamental fairness.

…Hence, logic compels the conclusion of an equitable connection between the provisions. If this were not the case, then defendant could simply continue to accrue significant additional arrears, leaving plaintiff to essentially support the children by herself while defendant receives an annual tax break for her efforts. Such a result would be not only inequitable, but arguably unconscionable as well.

 The second reason given was that the accrual of arrears is a change of circumstance … “warranting equitable relief, since plaintiff is now deprived of over ten thousand dollars in support funds which she was entitled to receive and utilize in raising the parties’ children.”  It is interesting that the judge intertwined enforcement/failure to comply with a changed circumstances, as that often is not a winning argument when made by lawyers.

The third reason, which I think really would trump the second reasons, is that this could be a permissible and appropriate economic sanction for failure to pay support.  Judge Jones held:

A third legal basis supporting plaintiff’s motion to modify the tax exemptions rests in Rule 5:3-7(b), which permits a court to take action against a party who violates a child support order. Such action may include, but is not necessarily limited to, economic sanctions (R. 5:3-7(b)(4)), and any other appropriate equitable remedy (R. 5:3-7(b)(8)). The suspension of a delinquent payor’s right to claim a child dependency exemption, until he/she satisfies his court-ordered child support balance, constitutes an appropriate sanction and equitable remedy under sections 4 and 8 of Rule 5:3-7(b).

The judge did point out that the mere existence of arrears should not automatically invalidate the agreed upon right to claim the exemption.  The judge noted that if the arrears were not due to a failure to comply with an order, but rather, from a retroactive award or adjustment of child support or some other “technical adjustment”, it might not be fair to take away the right to claim the exemption.  Put another way, if the arrears were no fault of the payor, then the exemption probably shouldn’t be taken away.

While much of this may be common sense, the relief was not universally granted in my experience.  This opinion, at least, gives greater credibility to the argument.

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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_mybaitshop’>mybaitshop / 123RF Stock Photo</a>

 

 

I CAN APPEAL MY ARBITRATION AWARD, RIGHT?

Posted in Mediation/Arbitration, Practice Issues

As we have all seen and heard, alternate dispute resolution (ADR) is all the rage.  Two common methods of ADR are mediation and arbitration.  To describe the two as simply as possible, in mediation, the parties and their attorneys (and perhaps even their experts), meet with a neutral third party to help them to come to an amicable resolution of the matter.  With arbitration, the parties submit the matter to a third party to decide.  Arbitration is often very much like a trial, but the matter is tried to a private judge.  The parties can agree that the rules of procedure and evidence can be relaxed, or they can agree that the arbitration have the same or a similar formality that a trial would have. There are several reasons that people use arbitration as an alternative to litigation.  Some people believe that it is faster and less expensive than a trial in court.  Some times it is and some times it isn’t.  Other think that they would rather choose their judge then be subject to the random assignment in the judicial system.  Others still may have no choice but to go to arbitration because there are issues that they cannot try before a judge who may have a duty to report the matter to the IRS (see my prior blog post on this topic.) Now, with matters tried in court, parties have a right to appeal the decision to the Appellate Division if they don’t like the decision.  Is it the same for arbitrations?  The answer is clearly. Some things like, custody, can be arbitrated, but given the higher scrutiny because of the need to protect the children, the Supreme Court has determined that there needs to be greater procedural safeguards and the ability to review custody decisions (see my prior blog post on this topic.)  Thus, while not necessarily an appeal, the trial court can be asked to review the records. As to other issues, when you agree to arbitrate, it used to be all of the rage to put a right of Appellate review right into your arbitration agreements.  Unfortunately, no one asked the Appellate Division, who, in the case of Hogoboom v. Hogoboom rejected that process out of hand.  Specifically, they held:

“…Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. [They] can be corrected or modified only for very specifically defined mistakes as set forth in [N.J.S.A. 2A:24-9]. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award. For those who think the parties are entitled to a greater share of justice, and that such justice exists only in the care of the court, I would hold that the parties are free to expand the scope of judicial review by providing for such expansion in their contract; that they may, for example, specifically provide that the arbitrators shall render their decision only in conformance with New Jersey law, and that such awards may be reversed either for mere errors of New Jersey law, substantial errors, or gross errors of New Jersey law and define therein what they mean by that.” … Here, the parties afforded themselves an expanded scope of review, as they were, by contract and by statute, permitted to do. The parties were not, however, entitled to create an avenue of direct appeal to this court. .. It is settled that consent of the parties does not create appellate jurisdiction.  … In our judgment, the parties must seek initial review of these awards in the trial court. The trial court is charged with employing the standard of review the parties contractually agreed upon in determining whether these awards, or either of them, should be vacated or modified. …

38911415_s The issue of Appellate review of an arbitration award recently came up again in the case of Shelley v Shelley, an unreported (non-precedential) opinion decided by the Appellate Division on April 21, 2015.  In that case, the husband appealed a trial court order confirming an arbitration award. In Shelley, the parties agreed to arbitrate the financial issues of their divorce under the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. After engaging in the arbitration, the arbitrator issued a detailed decision from which plaintiff requested modification. Even though, his request for modification was out of time, the arbitrator addressed each of his claims and affirmed the award.  He then raised the same claims to the trial court in opposition to the motion to confirm the award.  The trial court issued what the Appellate Division deemed were “two well-reasoned and comprehensive opinions” wherein she found that the husbands arguments lacked merit, and that he “… he had not demonstrated that the arbitrator committed any factual or legal error.”  The same issues were raised on appeal. The Appellate Division ultimately dismissed the appeal, concluding that they had no jurisdiction to hear it.  Why, might you ask if there is an appeal as of right from trial court opinions?  Because the agreement to arbitrate essentially took away those rights. In fact, the Appellate Division held:

The APDRA, N.J.S.A. 2A:23A-1 to -30, is a voluntary procedure for  alternative dispute resolution. Mt. Hope Dev. Assoc. v. Mt. Hope Waterpower Project, 154 N.J. 141, 145 (1998). The grounds to vacate, modify or correct an arbitration award under the APDRA are limited. An arbitrator’s decision on the facts is final if supported by substantial evidence. N.J.S.A. 2A:23A-13(b). Appeals pursuant to the APDRA may be filed with the trial division of the Superior Court, which can vacate or modify an award, but only if certain conditions are present. Here, the trial court exercised its appellate review role, and found the arbitration award should be confirmed. The question before us is whether we have jurisdiction to hear plaintiff’s appeal from the trial court’s decision, under N.J.S.A. 2A:23A-18(b). The Supreme Court has determined that, in general, N.J.S.A. 2A:23A-18(b) precludes appellate review with only a few exceptions, in rare circumstances, where the Appellate Division is compelled by public policy concerns or the need to exercise its supervisory authority. …None of those rare circumstances exist in this case.

So that’s it?  If you arbitrate, then you can’t appeal?  Not quite.  Just like you can agree to arbitrate the initial determination of the issues, you can also agree to an appellate arbitration, as well.  I have had matters where our initial arbitration agreement called for the use of a panel of two retired appellate division judges (didn’t have to be – could have been anyone we agreed to be the appellate arbitrators), who would then decide the matter as if they were sitting as a regular appellate panel.  While in that case, you essentially lose the chance to appeal to the Supreme Court, you still have a body to review the matter if you think that the arbitrator got it wrong in the first case. The take away, however, is that your arbitration agreement must clearly spell out the scope of review and who will review the matter – taking into consideration what the court system can and cannot do with regard to an arbitration award. _________________________________________________________

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_lculig’>lculig / 123RF Stock Photo</a>