NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Every year at about this time, you hear a supposed "fact" that Super Bowl Sunday is the biggest day of the year for domestic violence.  I even saw something on this this week on either Twitter or some news service.  I figured that I was use this blog to pass along a public service announcement about this scourge to give a heads up to potential victims.

Funny thing is that when I went to research this, I found several articles suggesting that this was really urban legend.  No less than Snopes, the debunker of all rumors and urban legends says that this "fact" is simply not true.

I am not trying to make light of this or domestic violence in any way but what is true?  Well, what is true is that the use/abuse of alcohol often plays a role in domestic violence.  Common experience tells us that there is a lot of drinking when watching the Super Bowl.  In fact, people who don't typically watch football may attend a Super Bowl party where alcohol is being served.  One need only watch the glut of Super Bowl beer commercials to see the almost overwhelming role of alcohol in Super Bowl culture. 

That all said, while their may not be a societal rise of domestic violence on Super Bowl Sundays, victims and potential victims need not simply accept domestic violence and should do what they need to to protect themselves, call the police and/or avail themselves of all domestic violence resources in there area. 

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Almost two years ago, in fact, one of the first blog posts even on this blog, I authored a post entitled "All Cases Have a Life of their Own." I just finished a case this week that gave me reason to think about this post again. 

In this case, one party just didn't want to get a divorce.  It did not make a difference that the other spouse made clear in no uncertain terms that the divorce was going to happen.  In fact, because the spouse asked the other to reconcile every single day, knowing that it would upset the other spouse, that spouse heard every day that the marriage was over.  Even the children's therapist advised that that spouse should move out given the impact of that spouse's continued presence on the children, etc.  Nothing sunk in.  Eventually, the finality of the trial date, in fact on the trial date, did the matter finally settle, but not without several last ditch attempts not to proceed with the divorce.  The real shame is that substantial fees had to be incurred to prepare for trial - an unavoidable problem because one spouse held out hope for reconciliation until the bitter end.

I have another matter, where a spouse is refusing to make settlement proposal but is demanding a settlement conference.  It seems clear that the desire is to get the other spouse in a room to bully that spouse into a settlement or otherwise because there is the expectation that the other spouse will capitulate just as always occur ed during the marriage.

Some spouses refuses to provide discovery or comply with others, hoping to wear the other spouse down.

The bottom line is that hopefully the put upon spouse will stay strong and not fall prey to the other parties unreasonable if not bad faith conduct.  More importantly, hopeful the Court's will protect that party with a fair and generous award of counsel fees.

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In today's New York Daily News, there was an article that actress Kate Walsh and her husband are going to flip a coin to determine who gets to pick first and then they will alternate picks as they divide their personal property in divorce.

You don't have to be a celebrity to follow the alternate selection method.  In fact it is very common when people cannot mutually agree upon a distribution of their furniture, furnishings and personal property.  Another method sometimes used is that one spouse makes two ostensibly equal lists of the personal property and the other spouse gets to choose which list they want.  There are obviously many other ways to accomplish this as well.  There are no absolute rules, other than perhaps, the custodial parent will get the children's furniture. 

Perhaps the only other absolute rule is that judges (and attorneys) hate getting involved in this type of dispute. 

Of course, that is not to say that there cannot be disputes about valuable items like furs, jewelry, art, antiques, collections, etc.  That, however, is very different than ordinary furnishings and household items that tend to have little value once you bring them home.

So if you are divorcing and cannot agree on the distribution of the furniture, etc., you too can act like a celebrity, flip and coin and alternate picking until it is all gone.

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There is no such thing as a normal or typical divorce, every case is different. Sometimes a case I expect to be difficult ends up being easy, while other straightforward cases can sometimes become quite challenging. Equitable distribution is no exception. Different clients have different assets (and debts) to divide – homes, retirement accounts, IRAs, 401(k), Keogh plans, businesses, vacation homes, time shares, art, jewelry, yachts, trusts, and the list can go on and on.   The starting premise is that assets that were owned prior to the marriage are not subject to equitable distribution. However, if that asset is commingled with marital assets it can lose that identity and be subject to equitable distribution. Obviously, this standard can create disagreements with both parties attempting to exclude their assets, but include their former spouse’s assets. 

Recently in an unpublished Appellate Division decision, Mekhail v. Mekhail, App. Div. decided February 2, 2010, the Appellate Decision reviewed a judgment involving equitable distribution and alimony issued following a trial. In Mekhail, plaintiff-wife sued defendant-husband for divorce on October 9, 2007.  The case was tried and judgment was entered on November 21, 2008.  Defendant appealed, arguing that the trial judge erred by: (1) failing to make adequate findings of fact respecting alimony; (2) arbitrarily awarding plaintiff 25% of defendant's retirement account; and (3) directing that each party remain responsible for their own credit card debt.  At trial, plaintiff sought to exclude an IRA account with a $15,000 balance, a retirement account with an $18,000 balance, and a Vanguard account with a $36,000 balance. Plaintiff alleged that these accounts were premarital and not subject to equitable distribution. Meanwhile, defendant had a 401(k) account with a $50,000 balance. Because sufficient evidence was presented to the trial court about the plaintiff’s accounts being premarital, they were not subject to equitable distribution. Yet, the trial judge ordered defendant to give 25% of his 401(k) to plaintiff as part of equitable distribution. Of their joint assets, defendant received about $137,500 and plaintiff received about $112,000.  Given the facts, the Appellate Division did not find the trial judge decision arbitrary and affirmed the decision and equitable distribution. 

 Mekhail is an excellent example of how various assets can be subject (or not be subject) to equitable distribution. That is why when people ask about equitable distribution, the only thing I can really say is – “it depends.”

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On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

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I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents. 

 Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

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In October of 2008, Jennifer W. Milner blogged on palimony and pending legislation (S-2091), which, if enacted, would overturn the palimony decisions she discussed by requiring that any such contract to support one for life must be in writing and signed by the person making the promise. More specifically, that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of the relationship or after its termination, is not binding unless it is in writing and signed. The editor of the blog, Eric S. Solotoff, promised that we would updated the blog accordingly. Well, on January 15, 2010, just a few short days before Jon Corzine’s last day as Governor, he signed legislation (S-2091) which prohibits the enforcement of palimony agreements that have not been put in writing. The new law provides that a promise of palimony is not binding unless it is in writing. It also requires both parties to receive independent advice of legal counsel before the agreement can become binding. This law closes a loophole in state law that has allowed palimony claims even when unmarried couples never lived together or did not put their promises of support in writing. The new law takes effect immediately.

Women will no doubt be hurt by this new law.  There remains questions as to what the law means to both pending palimony cases as well as people who have in been relationships that would have merited palimony but for the new law.  We would expect that there will be more to come on this.

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When lawyers say you should never represent yourself, even in so called, “simple” cases,  they are often accused of being greedy, driving up fees, and unwilling to acknowledge that there are smart people out there that are capable of working out the terms of a settlement.  I have recently been involved in a case which has been really bothering me. It is the perfect example of an intelligent, thoughtful, detailed oriented individual who believed he knew what he was agreeing to twenty three years ago when he was divorced and now finds himself in a position where a trial court has interpreted his divorce settlement agreement far differently than he did back then.

 In my case, my client did not have an attorney at the time that he was divorced .  He and his wife were able to reach an amicable agreement as to the terms of their divorce and she hired a layer to draft the agreement and put the divorce through.  When they got the issue of my client’s retirement benefits, he agreed to language which he thought would limit his ex-wife’s share of his retirement. Unfortunately, he did not have his own counsel to inform him of what is often referred to the “marital foundation” theory, which essentially means that as a result of the foundation that is built in the early part of employment ( which usually occurs during the marriage), a former spouse will be entitled to the benefit of  some post marital efforts.

Usually, a former spouse’s entitlement to a retiree’s pension is calculated by use of what is known as a “coverture” fraction. In its simplest form, the coverture fraction is one in which the numerator is the number of years or months that the employee worked during the marriage and the denominator is the total number of months or years worked. That fraction is then multiplied by the percentage of which the former spouse is entitled ( usually 50%). The resulting number is the actual percentage of the pension payment that the former spouse will receive.  This fraction is used for several reasons. First, as I have previously stated, the theory is that during the marriage, a foundation is built which allows the working spouse to advance in later years. Second is the reality that this is a mathematical way to segregate out the marital portion. It is not, however, a perfect science given the way that the majority of pensions are calculated.  The end result is often that the former spouse shares to some extent in a pension benefit that is calculated based upon a higher salary which was earned after the divorce.

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What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010. 

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation.   After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA).   At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.

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