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NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

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.

Connect with Robert: Twitter_64 Linkedin

Custody Issues and the Transgender Child

Posted in Custody, Divorce, Other, Uncategorized, Visitation/Parenting Time

Lelah Alcorn’s death is a travesty.  For those unfamiliar with her name, Lelah is the 17 year old child who committed suicide recently when her parents refused to accept the fact that she is transgender, and while labeled at birth as a male, identified as a female.

Lelah’s story is so upsetting on so many levels, not the least of which a child unnecessarily took her life.  Having worked with families in which there is a transgender child, I am far too familiar with the emotional turmoil which ensues in these cases.  In her case, Lelah had two parents who refused to accept her for who she was. 

Transgender individuals, including children, have a high rate of depression, and suicide attempts when compared to the general population.  A  National Transgender Discrimination Survey,(NTDS), conducted by the National Gay and LesbianTask Force and National Center for Transgender Equality, found that the suicide attempts of transgender individuals is 41 percent, compared to the 4.6 percent of the overall U.S. population who report a lifetime suicide attempt.

In any custody matter, it is the best interests of the child that must govern any judge’s decision concerning a child.  Keeping a child safe is paramount.  While a court application is seen in the law as no different that a situation, for example, in which one parent wants to consent to a tonsillectomy and the other does not, these issues are unfamiliar, and thus frightening.  In cases of children who may identify as transgender, the biggest hurdle that a lawyer advocating for the parent supporting the child (or advocating for the child alone) faces is lack of education.  This, coupled with the mental health issues which may be present, makes for a case which can be daunting for the well meaning, but uninformed.

So many well meaning, yet unaware professionals are afraid that an application in support of a transgender child is synonymous with a trip to the operating room. Indeed, what is far more actual is that advocating for the best interests of a child means requesting access to therapy and on occasion, may include a request for reversible hormone treatment (for example, to block menstruation in the case of a child who identifies as male) so that the child can determine a path for the future.  This also may include advocating to make sure the child is being treated appropriately in his or her school system.

A collaborative relationship with attorneys, medical and mental health care providers, therapists specializing in gender issues is critical for the child.  These are the professionals who assist in the education of the judge, the other attorneys who may be involved in the case, including guardian ad litems, and other individuals who will interact with the child.

Jennifer 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 609-895-6712 or jmillner@foxrothschild.com.

 

DOES SOLE CUSTODY STILL EXIST?

Posted in Custody

Sole custody is kind of like Big Foot or the Loch Ness Monster – everyone has heard of it but few have actually seen it.  Clients tell me all of the time that they want sole custody – either because that is what they believe they should have, or because they have justified it based upon the other party’s conduct.  Some seem shocked when I tell them that it is very unlikely to occur – even in the worst of cases.  I regale them of horror stories where, at the end of the case, either the expert has recommended joint legal custody or the court has ordered it.  This happens even in cases where conduct has arguably been abusive.  This happens in cases even where there is no ability for the parties to communicate or cooperate.

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I was reminded of my belief in the hypothesis that sole custody doesn’t really exist when I read the case of Costa v. Costa, a reported decision released on January 12. 2015.  The short version of the facts is that after the divorce, the husband moved to Brazil.  The wife asserted, among other things, that since relocating to Brazil, he ex has failed to communicate with her in any meaningful way regarding decisions as to the children’s health, safety, and education.; telephonic communications are difficult and sporadic; and that her ex mostly ignores her attempts to communicate electronically. As a result, she alleges that she is largely unable to reach defendant to make such decisions in a reasonable period of time. Unfortunately, she did not raise those issues below and rather, was dealing mostly with the difficulty in obtaining passports for the children which was the central issue before the Court.   The father seemed to argue that he had regular discussions with the children and tried having discussions with the ex-wife.

In any event, her motion to modify joint legal custody to sole custody was denied.  The argument, not flushed out in terms of lack of ability to communicate, apparently was that the move to another country was a change of circumstances, but the courts disagreed.  In fact, Court seemed to suggest that relocation is only a change of circumstances when it comes to physical custody, not legal custody, and that joint legal custody does not require the parties to be in close physical proximity. In fact, the court noted, “Even if physical custody is not possible due to geographic separation, modern telephonic and electronic communications can enable effective joint legal custody and “preserve the decision-making role of both parents.”" The opinion, however, fails to address the refusal to communicate whether or not physical proximity was close.

Now, I’m not sure why this case was a reported (precedential) decision, because there is not much too it.  While the Appellate Division noted the allegations of the lack of/difficulties in communication, it offered little guidance regarding them and did not seem to place much importance in them.  Perhaps this was simply procedural. 

But have court’s forgotten the underlying touchstones for joint legal custody – specifically, the ability to communicate and cooperate.  There is case law that holds that a parent’s refusal to co-parent with the other parent goes against a recommendation of joint legal custody. In fact, our Supreme Court has held that:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort. …

The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

So what if the court delved further in to the father’s so called efforts to speak to the mother?  What if the Court learned that these efforts were minimal, at best?  Should the father’s desire to retain joint decision making trump his inability and/or refusal to communicate with the other parent?  If court’s and experts really aren’t going to consider the refusal to communicate and cooperate, despite the mandate to do so from the custody statute and case law, should the fiction of sole custody be eliminated? 

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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

YOUR CHILD THE “CLIENT”

Posted in Custody, Divorce

You know you are intrigued by the title of the blog, but what does it really mean?  I was in a recent mediation session in a divorce matter when the mediator referred to the child as his “client”.  What he meant was that the child’s interests and well-being were his primary concern above all else, but the concept resonated with both parties involved and focused their attention, at least for the moment, away from the financial issues at hand.

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All too often the litigant mantra is that he or she wants to do what is best for Little Johnny or Susie, but, as one would expect, opinions differ – especially between the litigants – as to what that means.  For instance, mom may believe that it is in the child’s best interests that she be the primary residential custodian, while dad may believe 50/50 is the way to go.  Neither party may necessarily be wrong, but ultimately an agreement has to be reached, or a court-decision rendered that is in the “client’s” best interests.

Here are a few other tips to ensure that the “client” is properly cared for during a litigation and beyond:

1.  Don’t talk badly about the other parent with or in front of your kid!  It is so easy to say, yet seemingly so hard to do for some, if not most parents.  You’d be amazed what a child will overhear and absorb.  Even negative body language in front of the other party while the child is there sends a message.  You may brush it off as nothing, but the impact of your words or actions can have long-lasting effects.

2.  Don’t talk about your case with or in front of your kid!  No child should ever be exposed to what is happening in a divorce proceeding or the issues that may directly or indirectly impact upon him or her.  While even the most off-hand comment may seem innocuous, I can’t tell you how many times clients report to me about what the children know about that latest motion that was filed, or that support payment that wasn’t made.

3.  In connection with the above – Don’t try to curry favor with your kid!  This is not a contest.  There are no blue ribbons at the end, and your child is not the prize.  The “client” does not need to be tugged both ways simply to make you feel better about yourself and your parenting role in the child’s life.  It may sound harsh, but it happens all the time, even in the most amicable of cases.

4.  Talk to the other parent about your kid so that you both know what is going on!  Again, this should seem self-explanatory, yet in many cases one parent will hoard information about a child in a way that never occurred during the marriage.  Johnny needs extra help at school?  Tell the other parent.  Susie is having difficulty with what is happening to the family?  Tell the other parent.  There are so many feelings, emotions and questions that a child may have both during and after a divorce.  To exclude the other parent from what is happening is not only contrary to how things likely worked during the marriage, but…again…may have long-lasting impacts on the “client.”

5.  Finally, remember that it took two parents to bring your children into this world and two parents to raise them to be the adults that you always thought they should and could be.  Present a united front to the “client” – let him or her know that no matter what is happening between mommy and daddy that the “client”‘s best interests are always front and center, and that you and your spouse will be always be there for them.  Sometimes the most basic reassurance goes a long way.

This is really common sense, yet it comes up so often in matters involving children that it only goes to show that common sense sometimes goes out the window in the midst of even the most friendly of divorce proceedings.  Ultimately, while your marriage may be coming to an end, that does not mean that certain steps cannot be taken to protect the child as the “client” at the center of your case.

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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

WHAT DOES THE NEW ALIMONY LAW REALLY MEAN FOR THE DURATION OF YOUR PAYMENT?

Posted in Alimony

Since Governor Christie signed into law the New Jersey alimony reform bill in September 2014, many divorced or divorcing spouses have asked what it means for the duration of the alimony payment specific to his or her case.  Do you have reason for optimism?  Do you have reason for concern?  While the law is still as fresh as can be and largely untested, the questions have some answers….and raise some more questions.

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While I previously blogged about the general changes in the law, the answers to the duration-related questions are not as simple as they may seem at first glance.  In case you were wondering, this blog post is not going to focus on the new provisions addressing a termination or modification of alimony in the event of retirement, cohabitation or a down income, each of which could also modify an existing alimony duration.  I will devote future blog posts to those specific portions of the amended law.

First, does the new law apply to your case?  The law generally only impacts the duration of alimony for those cases that were ongoing at the time of the law’s enactment or future divorces.  So, if your divorce was finalized PRIOR to the amendment’s effective date in September, whether by agreement or by a final judgment entered by a family judge following trial, you may be out of luck unless your situation fits into another portion of the amended law including, but not limited to, retirement, a down income, or cohabitation.

Next, does the new law really mean that your alimony will last for the length of the marriage?  The new law provides that the duration of alimony cannot be for longer than the length of the marriage, except if the marriage lasted for 20 years or longer.  In that case, permanent alimony still exists (although now categorized as the less controversially named and more practically applied “open durational alimony”).  The short answer is, it depends.

There was no language to this effect in the prior version of the law, and in most situations (of course, depending on the circumstances) family law judges were not inclined to award alimony for a duration equal to that of the length of the marriage.  So…..now what?   The practical effect is that payee spouses are more likely to argue than before for a duration of alimony that lasts for the length of the marriage (or close to it).

What about these “exceptional circumstances” that could impact on the duration of alimony?  The new law provides that certain “exceptional circumstances” may result in a duration of alimony longer than the marriage (even if the marriage lasted for less than 20 years).  These circumstances include, but not limited to, the ages of the parties, any health issues, career sacrifices and support, and more.  While the language is somewhat simultaneously nuanced and expansive, from a practical standpoint the enumerated circumstances are largely similar and/or encompassed by the standard statutory alimony factors that a court will consider in awarding alimony.  If there is a particularly unique set of circumstances in your given case – for example, a chronic illness that heightens the need for a longer alimony duration – the court would have considered it before and it will do so now in rendering a duration determination.

How is my duration impacted by all of those payments that I made/received during the case?  Before the amendment, many payor spouses would argue that the length of time that payments have been made during the divorce should be considered when determining the duration of alimony.  On the flip side, the payee spouse would assert that payments made during the case should not count towards the post-divorce duration of alimony.

Now, the nature, amount and length of support payments made during the divorce are to be considered by a court in rendering an alimony award.  Payor spouses looking to move a matter along and disincentivize the payee spouse to delay a conclusion have cause to rejoice, although the ultimate impact of such payments remains within the discretion of the trial judge.

The Takeaway:  The new law is just getting its feet wet, and litigants, attorneys and trial judges are wading their way through the unchartered waters.  One of the major goals in amending the alimony law was to address the way in which the duration of an alimony award is decided, most specifically in eliminating the phrase “permanent” alimony and limiting those situations in which “open durational” alimony – permanent alimony’s friendlier next door neighbor – would apply.  The simple and unsatisfying answer for both parties is that payor spouses will not have to pay alimony for longer than the duration of the marriage except in cases of exceptional circumstances.  The simple answer will not always be the right answer, though, as litigants arguing for or against the existence of exceptional circumstances will likely become anything but exceptional.

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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)

YOU CHEATED, YOU LIED, THE COURT SAYS “WHATEVER”

Posted in Alimony, Divorce, Equitable Distribution, Practice Issues

When meeting with a new client whose spouse has cheated on them, the anger, sadness, sense of loss and betrayal is often palpable.  They are quite often resolute that they can never get over their spouse’s indiscretion (though referring to it as an indiscretion seems to minimize it from the victim’s perspective), and proceeding to divorce is their only option in their mind. That said, the hardest thing telling this person is that the court is going to treat this betrayal with a big “so what.”  This is just “garden variety adultery” after all.  He can’t see the kids because cheated right?  Um, no.  She can’t get alimony because she cheated, right?No again in New Jersey but in other states, I understand that this penalty exists.  But the court has to punish him/her right?  No.  At the very least, since she/he lied, to me, the court won’t believe that she/he is credible, right?  Maybe, but probably not. So other than divorce – you can still seek fault based divoce based upon the adultery – that’s it?  In most cases, yes.

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The bottom line is that, about 10 years ago, our Supreme Court , in Mani v. Mani, reaffirmed that fault really does not matter when it comes to the financial issues unless the fault is “egregious.” There are very few examples tht one could think of as to what is actually agregious, but normal adultery won’t usually be considered egregious.

There is one caveat though.  If you can show that marital funds were used in furtherance of the affair, then perhaps you can get half of the money back. However, proving this is often an expensive undertaking.

The take away from this is that there is rarely a legal pound of flesh that you can obtain when your spouse cheats.  While I am sure that this feels unfair, that is the current state of the law.

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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

NEW YEAR’S RESOLUTION DIVORCE – CELEBRITY STYLE

Posted in Divorce

Last week, I posted my annual piece on the New Year’s resolution divorce, which is always one of our most popular posts.  Perhaps due to this phenomena, or perhaps due to pure coincidence, in the last two weeks, the papers have been filling with stories of celebrities that are divorcing, Chris Rock, Slash, Giada DeLaurentis, Idina Menzel, to name a few.

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From the news accounts, at least some of them have been in the works for some time, but were either just filed and/or announced now.  Perhaps  celebrities were planning for a slow news cycle, college bowl games and pro football playoffs for the annoucement to fly under the radar.  Or perhaps even celebrities see the new year as a the time for renewal and a fresh start.  Maybe this is just a big coincidence, but it is an interesting one nonetheless.  In any event, Happy New Year and just remember, you don’t need to be a celebrity to seek your own fresh start. 

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

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