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NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

The Importance of a Credit Score

Posted in Equitable Distribution, Interspousal Agreements, Other, Property Settlement Agreements

Lawyers and litigants alike have long understood the importance of maintaining a good credit rating before, during, and after the divorce. As the parties, particularly one who has not had significant employment during the marriage know, a positive credit rating is critical to establish a new residence, purchase vehicles, and start a new, single life. Often however, the actions of one party can have the effect of damaging irreparably the credit rating of the other. This often happens in the context of one party failing to pay the mortgage on a former marital home or refinancing the mortgage to remove the other party as obligor. Recently, this issue was examined by the court in the case of LH v. DH.

In that case, the parties’ settlement agreement at the time of divorce provided that:

…it is the intent of the parties that the wife shall maintain and keep the marital home… Husband shall execute a quit claim deed transferring his interest in the former marital home to wife, and husband’s attorney shall hold the same in escrow pending wife’s refinance of the mortgage in her name. Wife will have nine months from the date of this agreement to obtain refinance of the mortgage in her name.

This is a very common provision which is found in many settlement agreements. In this case, however, the wife failed to refinance the mortgage removing the husband as an obligor. The husband did not take any action to enforce this obligation initially. However, a couple of years after the divorce, he went to purchase a new home of his own. When he applied for a mortgage, he discovered that his credit rating had been negatively impacted, and he was unable to obtain a favorable rate for a mortgage as a result of the fact that his name was still on the mortgage for the former marital home. He then made an application in court seeking enforcement of the settlement agreement and to appoint him as attorney-in-fact to sign any documents to list the home for sale and sell it.

The court agreed with the husband and granted his request. Importantly, however, the court’s decision took notice of the fact that “as a matter of indisputable knowledge, a positive credit rating and score is one of the most valuable and important assets a party may presently possess. Simply put, a strong credit report and score can enable one with relatively limited assets or income to make substantial purchase is which he or she could not otherwise afford…. Reciprocally, a negative credit rating and score can have a detrimental and sometimes disastrous effect on the party’s financial health, often crippling the party’s ability to obtain a loan, either at a favorable rate or at all, for significant purchases such as a house, car, school tuition, or other expensive items, will potentially and simultaneously limiting the individuals healthy financial growth for years.”

This acknowledgment by the court is very significant. As a practical matter, when an agreement provides time to a party refinance a mortgage or loan, it is important for the other party to regularly check his or her credit score. Additionally, when deadlines pass under the terms of an agreement, it may be critical to take appropriate action to enforce its provisions. While this can be sometimes emotionally difficult given the fact that former spouses and often children are living in the house, the repercussions can be devastating.


MillnerJennifer_twitterJennifer 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 jmillner@foxrothschild.com.

“Conscious Uncoupling”: An Ode to a Mediated Divorce

Posted in Alimony, Child Support, Custody, Divorce, Equitable Distribution, Mediation/Arbitration, Practice Issues, Privacy and Confidentiality, Property Settlement Agreements

As a lover of all things Coldplay, I was sad to hear that lead singer Chris Martin and his wife of more than 10 years, Gwyneth Paltrow, were divorcing. Gwyneth Paltrow announced the separation on her website Goop.com and used the term “conscious uncoupling” to describe their approach to divorce.  Although the term had been originally coined by marriage and family therapist, Katherine Woodward Thomas, as with anything else endorsed by celebrities, the phrase went viral after her post.  It was of particular interest to me personally given my chosen profession as a divorce lawyer.

As professionals, especially ones whose practice is client-centric, we are always striving for better ways to do our jobs.  In my case, that means getting clients their desired result in the most effective and streamlined way possible. After practicing for several years, experience has shown me time and time again, that people going through divorce are most satisfied with the process when they feel they have control over it (i.e., are “conscious[ly] uncoupling”) and can proceed with a form of alternative dispute resolution (such as mediation) rather than traditional, costly, protracted litigation.

Even as American culture has become more progressive and accepting, divorce is still considered taboo and is almost always surrounded by extreme negativity and hostility.  Even if the couple themselves wants to proceed amicably, they are unfortunately often allowing others in their life (parents, siblings, friends, new boyfriend or girlfriend) to control the dialogue and encourage them to dig in their heels.

Once people “dig in”, it is often impossible to “dig out”.  Protracted litigation only intensifies negativity and hostility. The idea that divorce has to be a negative experience then becomes a self-fulfilling prophecy, in which divorcing parties behavior, is influenced by their expectation that divorce must be awful.  I believe if you change the conversation surrounding divorce and allow yourself to “consciously uncouple” you will have much more satisfying experience surrounding your divorce.

I recently completed a 40-hour divorce mediation training program. This program has only solidified my beliefs that in many cases, a mediated divorce, is a better divorce. That is not to say that litigation is never necessary. There are some circumstances that cannot be mediated and some people that simply cannot effectively participate in mediation. That said though, divorce is multi-dimensional: it is legal, it is financial, and it is emotional. The great thing about mediation is that it can effectively address each of those dimensions.


Whether you litigate or mediate, you achieve the same end result: a legal divorce.  A mediated divorce however is often faster, less adversarial and provides more flexible and creative resolutions, narrowly tailored to your specific family dynamic.  It also allows for a more confidential process than airing out your dirty laundry in a series of public court filings and appearances.


I will never say “always” or “never” because I’ve come to learn that nothing is absolute.  A mediated divorce however, can certainly be more cost effective. Spending less to uncouple leaves more to be divided between the parties and therefore places both parties in a better position to maintain financial independence and stability post-divorce.


Although emotions can run high during mediation, there is a much more focused approach on compromise and collaboration rather than “winning” as is seen in litigation. When people feel their spouse is negotiating in good faith and trying to be part of the solution, rather than part of the problem (i.e., zealously litigating over the smallest of disputes), they walk away feeling better about uncoupling, which leads to healthier relationships with themselves, their ex-spouse, and future romantic partners.

The takeaway from all of this is that choosing to uncouple, does not always have to be adversarial, financially draining and emotionally damaging. Take control of your divorce and find avenues in which to minimize the long-term effects.  Before deciding to wage war against your spouse, consult with an experienced and trained family law mediator to see how mediation can work for you.


Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time.  Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Beware the Divorce Litigant Who is Watering the Money Tree With The Tears From Cries of Poverty

Posted in Alimony, Child Support, Counsel Fee Awards, Equitable Distribution, Practice Issues

Often, cases are given nicknames, sometimes by judges and law clerks, and sometimes by the attorneys.  Sometimes the nicknames come from who the people are – for instance, a case we had several years ago where both parties were models became the “model case” at the courthouse.  Sometimes, the names come from something that one or both parties did – a case where a spouse tried building a brick wall inside his house to divide the house before the divorce might have been the “brick wall case.” Right now, we have a case called “the money tree case.”


We call this case the money tree case because, despite the husband’s ever present cries of poverty, money keeps materializing from out of nowhere for lavish spending.  Turn over the entire paycheck for support – sure – yet he lives like a king with no apparent income.  $40,000 is needed for a particular expense, it is wired in a day without disclosing where it came from.  Oldest child needs a car – no used car for her, she gets a new Mercedes.  In opposing a motion for counsel fees, his lawyer laments that he hasn’t been paid in a year and as soon as the motion is decided, he gets paid in full from sources unknown.

While at the same time of crying the blues that there is no money, expensive new watches appear which was a “gift.”  One if not two residences are being paid for though who knows by whom. There are expensive vacations.  Showering the children with presents.  The home equity line gets paid off, from no known source.

Of course, there is no transparency or up front disclosure about anything up front.  It is only after he gets caught, is there a lame excuse of a “gift” or a “loan” – with no proofs as to anything.

I, myself, have mused to the judge that I would like to know where to get a money tree too, because literally money keeps appearing in this case from no known source.

What is the takeaway?  When a litigant is crying poverty, you can’t let it go at that, especially when the lifestyle and known expenditures exceed the known sources of income.  Discovery must be doggedly pursued and the total cash flow (notice I didn’t say income because who knows how this person will characterize this endless cash infusion) must be calculated as best as possible.  That is the only way that support can be fairly decided.  Moreover, this money tree may also indicate an undisclosed asset or assets that is being tapped now, but which should be divided in equitable distribution.  When crying poverty, the wiping of the tears with $100 bills  is always a red flag.


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.

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

And I Know When That Hotline Bling…

Posted in Equitable Distribution, Practice Issues

Thanks to Drake, we all know that can only mean one thing.

Drake at Bun-B Concert 2011

By thecomeupshow [CC BY 2.0], via Wikimedia Commons

So what happens when your hotline bling(s), and you’re in the midst of or even about to be in the midst of a divorce?

By the time they are thinking about a divorce or going through the divorce process, many clients have moved on and are ready to get out there and see other people.  And many of them are wondering how that could impact their divorce.  Here’s what I tell them:


Legally speaking, the fact that you’ve started dating other people generally means nothing.  With two caveats, the Court doesn’t care about your personal escapades – and that includes your dating life.  But the two caveats are important ones:

1)  Dissipation of Marital Assets:  Don’t spend your soon-to-be ex’s money on your new fling or significant other.  If you are spending money on hotel rooms, lavish presents, lingerie and so forth on your new significant other(s) that rightfully belongs to your ex, then that will have an impact on the financial outcome of your divorce.  Specifically, your ex will be entitled to a credit for his or her share of that money.  That’s going to lead to a whole lot of legal fees trying to justify what expenses you paid for that were or were not legitimate (in other words, what did you spend on yourself that was in line with what you spent during the marriage, versus what did you spend on your dating life?).  Of course, a nominal amount of spending is generally not going to be an issue; it’s when the spending becomes exorbitant that there’s a problem.

2)  Whether / How the Kids are Affected:  If your new significant other poses a danger to your kids, obviously, the Court will care.  The best interests of the children are always paramount to the Court, as they most certainly are to you.  If you are dating someone with a  criminal history, drug problem, or so forth, legally speaking (and otherwise), that’s going to be a problem for you.  A Court may find that you do not have the children’s best interests at heart and this could impact the outcome of a custody and/or parenting time determination.  And sometimes, even if the new significant other may not pose a danger to the kids, the change in the status quo might be considered too much of a disruption.  In that type of situation, the Court may impose what are called “Devita restraints,” or restraints on one’s significant other interacting with the children.


For better or worse (see what I did there?) this area of the law comes with a lot of emotions.  It’s an outlier in the legal world, where most everything can be chalked up to dispassionate transactions and an “it’s just business” mentality.  Here in the family law corner of the profession, the path of a case is often driven by rage, sadness, anxiety, jealousy, or some combination of those.  If your ex knows you’re dating new people or have a serious relationship with a new person, that can often fuel the fire.

Maybe your ex will fabricate stories about you and your new significant other and will tell your friends, kids, or even the Court these falsehoods.  On the other hand, I’ve had cases where one party was so dejected and heartbroken by the other’s decision to move on that nothing could move forward.  In those types of cases, the grieving party just acts like the divorce isn’t happening and is completely unresponsive.  I recently had a case where the spurned spouse insisted my client was dissipating marital assets to fund her long distance relationship; his refusal to drop the (totally unsubstantiated) claim held up the matter for months.  My client was forced to go through every check she wrote and charge she made over a year-long period so she could prove her husband’s claim was bogus.

Now, it is not for us to discourage anyone from pursuing a relationship or an experience that makes him or her happy – though when you are married, one would think it would be more prudent to end one relationship before starting another.  But, the above is food for thought before you decide to pick up the phone when that hotline bling, or let it ring.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.


Posted in Alimony, Divorce, Modification

Litigants and family lawyers have eagerly awaited each decision from the Appellate Division that could shed some light on the numerous provisions in the amended alimony law that became effective on September 10, 2014.  On November 6, 2015, the Court released an unpublished (not precedential) decision in Court v. Court, wherein the trial court’s order denying an ex-husband’s motion to terminate his alimony obligation and vacate his alimony arrears was reversed and remanded for a plenary hearing.

retirement pic

The decision is interesting in its application of the amended provisions of the alimony law with respect to the issue of retirement, especially based on the chronology of the facts at issue.  The factual highlights are as follows:

  • The parties were married in 1981 and a judgment of divorce was entered in 2003 – approximately 11 years before the amended law took effect.
  • The court in the JOD ordered ex-husband to pay $1,000 per week in alimony.
  • Ex-husband was not paying as ordered and, in July 2013 he moved for a modification that resulted in a weekly alimony reduction to $500, plus a weekly payment towards accumulated arrears in the amount of $250.
  • An economic downturn in ex-husband’s industry and his deteriorating health caused him to retire in August 2014.
  • In 2014, ex-husband sought to terminate his alimony obligation based on his retirement at age 72.  He claimed that earned approximately $27k annually from Social Security and ex-wife was eligible, but refrained from applying for what would amount to $1,221 in monthly Social Security benefits.
  • Ex-husband’s arrears totaled almost $200k as of July 30, 2014 – less than 2 months before the amended law went into effect.
  • The trial court found ex-husband “provided the [c]ourt with sufficient evidence of his health problems to show he ha[d] lost his life insurance and [was] unable to be gainfully employed.”  It also found both parties in a “difficult financial situation” and noted how ex-husband’s sole income source of Social Security benefits was not enough for him to pay his bills, alimony and arrears.  The court also noted, however, that ex-husband – at age 72 – may again find work in the future and, as a result alimony should only be reduced.  The court, as a result, reduced the alimony obligation from $750 per week to $400 per week, with a $50 payment towards alimony and $350 towards arrears.

On appeal, the Appellate Court found that the trial court failed to make sufficient factual findings in support of its decision, specifically, it did not directly address the issue of ex-husband’s retirement, nor did it provide a basis for the reduced amount or ex-husband’s ability to pay “despite the findings defendant was unlikely to become reemployed given his advanced age and deteriorated health.”  Finally, the Court found that the family part judge “ignored defendant’s right to retire in good faith at age seventy-two.”

Notably, the Appellate Court directed the trial court to apply the amended alimony provisions on remand to determine whether ex-husband was still required to pay alimony.  In so doing, the Court conveyed “There is a rebuttable presumption alimony shall be terminated ‘upon the obligor spouse or partner attaining full retirement age.'”  It then cited to subsection (j)(1) of the amended law, which provides that alimony could only continue if ex-wife presented proof to overcome the rebuttable presumption based upon the following factors:

(a) the ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has forgone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant.

The Court added, in reference to subsection (j)(1) that “any arrearages that have accrued prior to [alimony] termination shall not be vacated or annulled.”  Thus, a payment towards arrearages was required in an amount based on ex-husband’s ability to pay.  Interestingly, Court indicated that the amount due could be reduced to a judgment upon which interest would accrue, thereby allowing ex-wife to take appropriate steps to collect.

I found the decision noteworthy multiple reasons, each of which have to do with the Court’s application of the rebuttable presumption under the new retirement language and its related factors.

Generally, the amended law seemingly, but not definitively from a legal application standpoint, provides three subsections in connection with an application for retirement that a trial court is to utilize depending on the facts of a given situation: (j)(1), (j)(2) and (j)(3).  Each subsection contains its own similar, but somewhat different sets of factors.  Only subsection (j)(1), which the Appellate Court referenced here, contains the “rebuttable presumption” language.  Subsections (j)(2), which applies to applications for early retirement, and (j)(3), which applies to retirement applications filed in cases where there is an existing final alimony order or enforceable written agreement, do not contain such language.

As a result, there existed a question emanating from the new language as to whether the rebuttable presumption referenced in (j)(1) applies to any retirement application, or just retirement applications stemming from final alimony orders/enforceable agreements entered AFTER the amendment’s effective date.  In other words, does the rebuttable presumption also apply to applications made under subsections (j)(2) and (j)(3)?  As the factual circumstances in Court involved a pre-amendment final alimony judgment, the answer from the Appellate Division, although not in a reported decision, suggests that the rebuttable presumption may apply to all retirement applications made under the new law.

The answer becomes somewhat uncertain, however, because the Appellate Court  remanded to the trial court with a direction that it apply the rebuttable presumption and factors enunciated in subsection (j)(1).  No reference in the decision is made to subsection (j)(3), which, as noted above, applies to retirements applications filed in cases where there is an existing final alimony order or enforceable written agreement.

Thus, while the decision in Court sheds some light on applying the retirement provisions of the amended law, it and future decisions will only provide a greater roadmap for litigants and attorneys with respect to seeking an opposing an alimony termination.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.


Posted in Custody, Divorce

I was recently reading a New York Times article from early November entitled “Stressed, Tired, Rushed:  A Portrait of the Modern Family”, and couldn’t help but see the commonalities between today’s modern family and the ever-changing issues raised in divorce.

The author, Claire Cain Miller, citing from a new Pew Research Center Study, conveyed to readers what many of us may already believe/know, even without statistical support in our back pockets – namely, that children in today’s society are more likely than not to grow up in a household in which their parents work.  The study also found the existence of households with both parents working full-time “in nearly half of all two-parent families” (46% of all two-parent households have both parents working full time – an increase of 31% from 1970; similarly, the percentage of households in which mom stays home has declined from 46% to 26%).

high wire

Parents’ ability to balance everything that comes with everyday life has only become more difficult, the study concludes, since there is only so much time that can be devoted to the kids, each other, friends, the house, the family dog, and, last but not least, the workplace.  Miller also noted that how the data reveals that workplace policies (such as paid family leave and before/after child-care) are not yet up to speed, or current to truly help with the situation when dealing with what is described as a permanent and societal shift in the traditional family structure.

Pew found that 56% of all working parents say the “balancing act is difficult, and those who [found such difficulty] are more likely to say that parenting is tiring and stressful, and less likely to find it always enjoyable and rewarding.”  It should be no surprise to anyone, as a result, why divorce rates are rising nationwide.

Interestingly, the article touched upon a changing shift in the mentality of parents that divorce lawyers find more common than ever in custody disputes – specifically, situations where mom still asserts that she has always handled primary caretaking responsibilities despite working full-time, and dad asserting that he does just as much as mom, if not more.  In other words, the article notes:

In most cases . . . women still do the majority of the child care and housework – particularly managing the mental checklists of children’s schedules and needs – even when both parents work full time . . .Just don’t tell fathers that.  They are much more likely than mothers to say they share responsibility equally.

Not surprisingly, more dads say they equally share in such tasks than moms think they do.  Custody evaluators in our field are, more than ever, making recommendations about what is in the children’s best interests where both parents work full-time.  For better or for worse, evaluators are seemingly more likely, under such circumstances, to recommend an equal residential parenting time arrangement.

Some other notable statistical findings from the Pew study:

  • Of full-time working parents, 39% of moms and 50% of dads say they feel that they spend too little time with the kids.
  • 59% of working moms, and more than 50% of working dads, say they don’t have enough down time.
  • The difference between working parents with college degrees versus parents without such degrees (65% with and 49% without) found the work-life balance difficult, with Miller speculating that the reason may be that workers with degrees may be expected to log in hours even after they leave the office despite increased flexibility during the work day.
  • White parents are more than 10% likely to express stress than nonwhite parents.
  • 41% of working moms said being a parent made it harder to advance at work, compared with 20% of dads.
  • Parents spend more time with the kids and less time maintaining the house due to less available time for both.  As compared to past surveys, however, Dads spend less time working, double the time on housework, and tripe the time time on child care.  Even still, the article noted how women still do much more, especially when it comes to raising kids, managing their schedules, caring for them when they are sick, and the like.  In addition, “Fathers and mothers are much more likely to equally share in doing household chores, disciplining children and playing with them.”

The article highlights the changing, or permanently changed nature of today’s modern family, which, from an overarching perspective, will continue to shape the divorce landscape for decades to come.  Litigants’ positions in divorce proceedings, as a result, will continue to evolve and, more likely than not, be less grounded in notions of the traditional family that is ever slowly, according to Pew, becoming a thing of the past.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.


Posted in Divorce, Practice Issues, Visitation/Parenting Time

Ah, Thanksgiving, Christmas and Hanukkah.  What many people generally consider to be the most important holidays of the year are upon us.  The time of year for being thankful, enjoying good food, football on Thanksgiving or basketball on Christmas, and celebrating with family another year gone by.  After almost eight years, this blog contains so many hundreds of posts that they frequently blur together for this writer, but one post written two years ago by Lauren Beaver about being thankful for what you have stands out if you want some inspiration this morning.


Thus, while one can only hope that the holidays bring minimal conflict and nothing but happiness for your family, oftentimes, especially for divorced or divorcing couples, conflict is front and center.  Interestingly, I have seen increasing conflict between parents as to even the Halloween holiday, but such issues generally pale in comparison to what transpires at the end of the calendar year.  I have written about holiday parenting time issues before, and, with Thanksgiving mere weeks away I thought it would be a good time for a brief refresher course so that you can address any issues now – before it is too late.

1.  Who has the kids and when? – Many parenting time agreements provide details down to the very minute of when the kids are with mom and when they are with dad, who is picking them up and taking them to the other parent’s house, and more.  Day before Thanksgiving, Thanksgiving Day, Thanksgiving weekend, Christmas Eve, Christmas Day, the first night of Hanukkah, second night, third night, winter break…the possibilities and machinations are seemingly endless.

Many agreements, however, are far more general, perhaps agreed upon at a time with you thought you would have no issue in working out these issues with your former spouse on an annual basis.  Who gets to put Bobby to bed on Christmas Eve?  Who gets to open up gifts with lil’ Tammy on Christmas morning?  Who is lighting the menorah with Benny?   Now is the time to firm up the details, because any conflict may leave you with no choice but to bring the issue to a family court judge.

2.  What holidays will the children be celebrating? – Perhaps one parent celebrates Christmas and the other celebrates Hanukkah.  Now what?  While the law generally provides that the primary residential parent can have the final say in deciding what religion the children are raised in, there is, for the most part, no issue with the child being exposed to and celebrating both holidays.  This, however, may not sit well with both parents.  If the issue of religion and religious holidays are not addressed in your agreement or court order, try to work it out to avoid a holy war.  Otherwise, you may end up having a judge decide the religious issue for you, which is not a place where you want to be.

3.  Who is buying gifts for the kids?  Who is buying that Thanksgiving turkey or Christmas ham?    This type of issue typically arises when the holidays fall during a divorce proceeding, but oftentimes fall afterwards as well.  Perhaps the monied spouse refuses to give money to the dependent spouse for such items, and prefers to lavish his or her own gifts upon the children as a way to buy the kids’ affections.  I once had a case where the dependent spouse was not receiving her ordered support and, as a result, actually had to go before the court and ask for money to buy a Christmas turkey and gifts for the children.  Suffice it to say, the judge was horrified at such a situation.  Do not let it happen to you.

4.  Who is saying what to the kids about whom?  Again, this is supposed to be a time of year for celebrating, being thankful, enjoying family, and looking forward to a new year.  Do not let your kids become the epicenter of your conflict with your spouse or former spouse.  Do your best to avoid disparaging the other parent to the kids.  Do not let anyone else talk badly about the other parent, including grandma or grandpa who may no longer have that loving feeling for their former son or daughter in-law.  Stop yourself from getting into an argument with the other parent in front of the kids.  Keep in mind that the kids will remember these holidays for years, if not decades to come.

These are just a few of the issues that may arise at this time of year and some tips to avoid or address them.  Now is the time – and not the day before Thanksgiving when family court judges are often inundated with emergency applications because mommy refuses to bring Johnny to daddy’s house, or on Christmas Eve when daddy refuses to allow Sammy talk to mommy – to address these issues through amicable agreement or litigation.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Marriage Is an “Adaptive Economic and Social Partnership”; Even After You Have Been Divorced for 19 Years. How Retirement Impacts Present Alimony Obligations.

Posted in Alimony, Equitable Distribution, Mediation/Arbitration

In the recent matter of Perreault v. Perreault, P.P. and R.P. were divorced in 1996, after 22 years of marriage. Following a hearing, the Court ordered R.P. to pay permanent alimony in the amount of $500.00 per week. Neither the April 29, 1996 Final Judgment of Divorce, nor the August 7, 1996 Order provided that alimony would beof limited duration or would terminate upon R.P.’s retirement. P.P. also received $28,239.48 or 50% of the marital share of R.P.’s federal pension.

At the time of the divorce, R.P. was employed by the Veterans Administration Hospital and earned approximately $118,000.00 per year. At the age of 55, he retired from this job and began collecting his federal pension. After R.P.’s retirement, he continued working for other companies and in 2007 he began a consulting business with his current wife. In November 2013, he retired at the age of 65.

In April 2014, R.P. filed a motion to terminate his alimony obligation to P.P. based upon his retirement, or in the alternative, to reduce his alimony obligation. R.P. certified that he had gross income in 2013 of $96,985 derived solely from his pension, and from that amount, $28,239.48 was paid to P.P. pursuant to the Court’s August 7, 1996 Order. R.P. argued that only $25,000.00 of the remaining amount, $68,745.52 ($96,985.00-$28,239.48 = $68,745.52), could be considered for alimony purposes, and this amount was insufficient to justify an alimony award. Additionally, R.P.’s Case Information Statement showed that he had no debt, $9,891 in monthly expenses (although slightly reduced by the trial Court) and $823,000 in assets.

The trial Court determined that R.P.’s income had decreased, but that he had accumulated substantial post-judgment assets separate from his current wife from which he could pay alimony. Of the $823,000 in assets listed on R.P.’s Case Information Statement, the trial Court reduced this number by more than one-half to account for joint ownership with his current wife. The trial Court also recognized that with regard to R.P.’s pension, $40,505.04 was representative of the non-marital portion, not $25,000.00 as set forth by R.P. Additionally, the trial Court noted that R.P.’s future social security payments and his current wife’s income would assist him in paying his expenses, thereby increasing his ability to pay alimony. In contrast, P.P. would be in “dire straits” without alimony. In conclusion, the trial Court reduced R.P.’s alimony from $500.00 per week to $375.00 per week. Both R.P. and P.P. appealed.

R.P. asserted that the trial Court erred by ordering alimony in the amount of $375.00 per week because the non-marital portion of his pension, which he argues is $25,000.00, does not justify an alimony obligation and the Court erred by including his assets in determining his ability to pay alimony.

With regard to R.P.’s pension, “when a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the trial court shall not consider income generated thereafter by that share for purposes of determining alimony.” Innes v. Innes, 117 N.J. 496, 505 (1990) (emphasis added). “Conversely, the rule does not bar counting as income for determining alimony, that portion of the former spouses’ pension attributable to post-divorce employment, and therefore not subject to division as marital property at the time of divorce.” Steneken v. Steneken, 367 N.J. Super. 427, 437-38 (App. Div. 2004)(emphasis added).

What does this mean? It means that retirement assets that were equitably divided in a divorce (and other assets for that matter), cannot later be considered available for purposes of alimony post-judgment. In this case, since R.P.’s pension was equitably divided in 1996 when the parties divorced, the share that was equitably divided is not available for to consider his present alimony obligation.

However, any money contributed to his pension after the parties divorced, can be considered for purposes of alimony to the extent the post-divorce earnings enhance the value of the asset.

In order to determine the non-marital portion of the pension, the trial Court added P.P.’s 50% share to R.P.’s share of the same amount to determine that the martial portion was $56,478.96. The Court then subtracted this amount from the present value of $96,984.00 to calculate a non-marital portion of $40,505.04. The Appellate Division affirmed this calculation.

In addition, the non-marital portion of R.P.’s pension, the Court must then consider whether R.P. had other sources of income that justified the reduced alimony amount. To do this, a Court may consider the income generated by supporting spouse’s assets, but not the total value of the asset itself, when determining the supporting spouses ability to pay alimony. See Miller v. Miller, 160 N.J. 408 (1999). Here, the trial court erred by considering the total value of R.P.’s assets, and the matter was remanded for further proceedings.

Although not discussed in Perreault, a litigant who wants to terminate or modify their alimony obligation based upon retirement must begin their analysis with  N.J.S.A. 2A:34-23(j), one of the recent amendments to the alimony statute, which discusses how alimony may be modified or terminated upon the prospective or actual retirement of the obligor.


Posted in Custody, Visitation/Parenting Time

Clients with children often ask what can a court do if the other parent violates an existing custody or parenting time order.  The level of emotion and concern raised by such violations can be overwhelming and, oftentimes, victimized parents do not know what to do or where to turn.  Just a few of the issues and questions may be:

  • When the other parent deprives me of seeing my child despite the terms of the parenting time schedule that we agreed to, can he or she be forced to pay a fine?
  • If the other parent does not allow me to speak with my child on a “reasonable and liberal” basis as set forth in our agreement, can I file a motion with the court and have the person thrown in jail?
  • What about when the other parent does not tell the school or the doctor that I am supposed to have access to all of our child’s records too, and am supposed to be notified of events, meetings, appointments, and the like?
  • How about when the other parent decides to take our child to religious school, even though our agreement specifically says there will be no religious school?
  • Can I force the other parent to pay my attorney fees for having to address these issues?  What is the other parent going to say?  Are the answers ever “black and white”?

tug of war

While each situation poses its own unique set of facts and circumstances, where, as a result, the situation is almost never black and white or straightforward, there are options available when asking a court to address the situation.  I address two of the more widely utilized options below.

1.     Rule 1:10-3

Rule 1:10-3 of the New Jersey Rules of Court is the most commonly relied upon rule when one parent seeks the enforcement of a custody or parenting time order or agreement against the other parent.  The application is generally referred to as a “motion in aid of litigant’s rights” or a “motion to enforce litigant’s rights” and it is designed to remedy the specific violation of the order or agreement at issue.

Importantly, any sanctions imposed pursuant to Rule 1:10-3 are supposed to be “coercive, not punitive” in nature.  Thus, the mode of enforcement may even be of a monetary nature – perhaps a fine – or incarceration.  The fine may be of any amount deemed appropriate by the family court judge to coerce the violating party to comply with the order or agreement moving forward.  The offending party may also be required to pay for the moving party’s counsel fees.

2.     Rule 5:3-7

Rule 5:3-7 provides for potential “Additional Remedies” in the event of a custody and parenting time order/agreement violation.  Specifically, subpart (a) provides a court with no less than  ten (10) available options – which may be imposed in combination – in addition to those available under Rule 1:10-3:

  • Compensatory time with the children.
  • Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
  • Modification of transportation arrangements.
  • Pick-up and return of the children in a public place.
  • Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
  • Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
  • Participation by the parent in violation of the order in an approved community service program.
  • Incarceration, with or without work release.
  • Issuance of a warrant to be executed upon the further violation of the judgment or order.
  • Any other appropriate equitable remedy.

Many factors will be at play when a court determines whether to implement any of the above-remedies, not the least of which is the opposition posed by the allegedly violating parent.  For instance, one of the most commonly seen defenses to an allegation that a parent is not seeing a child for parenting time is that the child does not want to go.  Well, then the question is, if that is even true – since shielding the child from the proceeding is ideal, especially for younger children – why doesn’t the child want to go?  Then the issue spiders out into a variety of other potential arguments, such as the child’s age, disparagement of the moving parent to the child by the violating parent, alienation, scheduled activities and more.

Ultimately, victimized parents need not sit idly by and watch as the other parent does whatever he or she wants with respect to custody and parenting time despite an existing order or agreement.  There are many options, and many available remedies, to help ensure that the violations stop before it is too late.


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

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*Photo courtesy of meepoohfoto.

New York Focus – Paternal Grandmother Unable to Seek Visitation Due to Lack of Standing

Posted in Grandparent Visitation

In the Matter of MJM v. MM, an interesting new decision released earlier last week from the New York Supreme Court in Suffolk County, the trial judge held that a paternal grandmother petitioning for visitation with her grandchildren lacked standing to seek such relief.  The situation involved severe allegations of violence by the children’s father against the mother, as well as grandma’s relationship with her son.

Grandma specifically alleged that such relief was appropriate because: (1) the children’s mother had refused to allow her to see the children for almost a year, (2) she always had a strong relationship with the children, (3) she previously had “liberal visitation” and was actively involved with them since birth, (5) the children’s father (petitioner’s son) had not seen the children for almost a year due to a no contact order of protection, and, (6) generally, such relief was in the children’s best interests.


Mom for the children opposed the petition, alleging: (1) she was stabbed four times by the children’s father in the presence of the children; (2) a no contact order of protection was issued almost a year earlier in the related child protective proceeding prohibiting dad from having any contact with the children; and (3) there were pending criminal, matrimonial and personal injury proceedings.

Mom also alleged that grandma had no current relationship with the children, “because the situation fail[ed] to rise to the level of circumstances in which equity would see fit to intervene,” and, generally, the visitation was not in the children’s best interests because: (1) grandma lived with the children’s father, (2) paid for dad’s counsel fees for his criminal, matrimonial, personal injury, and child welfare proceedings; (3) had joint financial accounts with dad; (4) vacationed with dad; (5) was a potential witness in three of his cases and a potential impleaded party in the personal injury case; and (6) had a “virtually symbiotic relationship” with dad who had “committed a horrific assault” on mom in the children’s presence.

Grandma responded that she would have tried to keep in contact with the children but for the order of protection, and provided additional details regarding her relationship with and connection to the children.  She largely did not deny mom’s allegations about living with her son and paying for his counsel fees for several legal matters.  Grandma also indicated that she was open to alternative forms of visitation outside of the home and would respect the order of protection.  Further reply was filed by mom arguing against grandma’s petition, but not disputing grandma’s description of her relationship with the children prior to implementation of the no contact order.

As a threshold matter, the court held that it could not determine whether visitation with grandma was in the children’s best interests unless it first found that grandma had standing to bring her petition before the court.  Ultimately, the court concluded that grandma lacked standing to bring her visitation petition because she failed to demonstrate that “circumstances show conditions in which equity would see fit to intervene”.

In so holding, the court quoted from Section 72 of the New York Domestic Relations Law, which provides grandparents with standing to file for visitation with grandchildren, “[w]here either or both of the parents of a minor child, residing within [the] state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene . . .”

Since both parents were alive in the subject case, the issue of standing rested on the existence “of conditions in which equity would see fit to intervene,” which is not automatic and is based on an examination of all relevant facts at issue.  After reciting the above-referenced allegations, the court took note of the following in finding there did not exist standing for grandma to bring her petition:

  • grandma having waited 11 months to take any legal steps to see the children – especially since she is not referenced in the no contact order against dad.  Her argument that she failed to take steps to see the children because of said order was, thus, discredited, and it was her failure to try to see the children why she had no current relationship with them when she filed her application.  Quoting a previously decided matter, the court provided, “[if] the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where “equity would see fit to intervene”.
  • grandma’s close relationship with her son

The specific facts of the case merited a dismissal of grandma’s application under DRL Sec. 72, but the result may have very well been different had she made sufficient and timely efforts to contact her children, and kept some degree of distance/independence from the children’s father in light of what he had done.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of google free images.