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Pertinent Information As It Relates To New Jersey Family Laws

The ABC’s of Family Law- A is for “Assets”

Posted in Uncategorized

“What’s included” is a question which I hear many times each week as I meet with clients who are thinking about or embarking on the path of divorce or separation.  What assets are included in the marital estate is defined by statute in New Jersey.  Essentially, anything that was acquired by either party during the marriage by either party, regardless of whose name the asset is titled, is part of the marital estate and subject to equitable distribution.   There are, of course, exceptions to this rule, and those exceptions include assets that were acquired by way of a gift from a third party ( think 40th birthday present from your best friend, or transfer of property from your parent) – as long as it is maintained in the recipient name and not placed in  joint names with your spouse, and property that is inherited by one of the parties to the marriage.When having conversations with client, there are several questions that typically come up:

Pensions:  Pensions and other retirement accounts are included in marital assets. However, the amount is limited to the amount of money that was accumulated during the marriage ( and any growth  thereon).  For instance, if you have a 401(k) account and before the marriage you had $100,000 in the account, and during the marriage, you contribute another $50,000, it is only that $50,000 that is considered marital.

Businesses:  A closely held business that was started, or increased in value during the marriage is subject to distribution.  An example of this might be a spouse who started a tech company during the marriage.  The business will typically be valued by an expert (forensic accountant) and a portion will be awarded, or distributed to the non-business owner spouse.

Jewelry and other gifts between spouses:   Gifts from one spouse to another are included in the marital estate and will be distributed between the parties.  The one notable exception to this rule is the engagement ring.  That was a conditional gift that was given before the marriage, and once the marriage occurs, is considered a pre-marital asset.  Yes, that’s often a bitter pill to swallow!

The mountain retreat that I had before I got married:  As a general rule, this is considered a premarital asset and is exempt from distribution.  The exceptions to this can be when the  spouse whose asset it is has transferred the property into both names.  This happens sometimes during a refinance.    Also, if the non-titled spouse has made significant monetary contributions to the property during the marriage, and this has resulted in an increase in value, the non-titled spouse may have an equitable claim.

Restricted Stock and/or stock options that will not vest until after the divorce:  If the options or stock were awarded for service during the marriage, then at least a portion is marital.  What typically happens is that the distribution is not equal as there are post marital efforts that must be made in order to actually get the asset.

These are but a few issues that come up when discussing assets.  Not an exhaustive list for sure, but certainly issues to ruminate on and to discuss !


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


Posted in Child Support

In the return of our New Jersey Family Law Podcast Series, we are proud to present our fifth installment discussing child support and emancipation.  This has been a hot topic in recent months, especially following the Rachel Canning lawsuit from earlier this year.  Enjoy!

Listen to the Podcast and download the transcript here.




Robert A. Epstein is a partner and Eliana T. Baer is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.


Pre-School: Is it School, or is it Day Care? And which parent gets to decide?

Posted in Custody, Divorce, Interspousal Agreements, Visitation/Parenting Time

In the days of my childhood, formal education began in Kindergarten when, finally, I got to ride the bus with the big kids.  Not so much any more.  The vast majority of children now go to some type of pre-Kindergarten program during which they have the opportunity to learn the basics of the alphabet, numbers and the like. Given the fact that many intact families have two working parents, and that in most single parent households, the parent works outside the home, work related child care and pre-school often simultaneous.  So then, in the case of two parents who are apart, who gets to decide where the child goes?

This issue recently arose in the published trial court decision of Madison v. Davis. The parties in that matter had recently divorced-the parties shared legal custody and the mother was the primary custodial parent. Both parents were both working. At the time the parties divorced, the child attended “Pre-School A.”  The parties’ settlement agreement provided that they would equally share the cost of work related day care and that they would both be listed as emergency contacts on any school or day care provider.  There were no restrictions on the mother to use any particular day care provider, and the agreement further provided that once the child was of school age, the father would be able to obtain all information about the child’s progress and both parties were to receive information from the school.

Shortly after the divorce, the mother moved the child to “pre-School B.” The father objected, stating that the change was a major educational decision, which, under the joint custody agreement, should have been decided jointly.  The mother responded, stating that this was a nothing more than a change in work related day care, and as such, a decision which she had the authority to make as custodial parent.

Recognizing that pre-school is a bit of a hybrid situation, the court fashioned a seven prong analysis to apply when this type of question comes up:

First, when a pre-school program is being used in substantial part to fill a need for work-related day care, the primary residential custodian, has the initial right to select the  program for the child, or to transfer a child from one program to another one.

Second, the residential custodian’s authority on this issue is not absolute and unlimited. Rather, the choice must be reasonable. Reasonableness includes consideration not only of cost, but of other factors as well, such as location and accessibility, hours and dates of operation, curriculum, and ancillary services (transportation, lunches, etc.). The court specifically noted that as an example, if a custodial parent seeks to move a child from an existing pre-school to another pre-school which substantially increases the cost to the non-custodial parent or the travel time of the non-custodial parent, then such selection may potentially be deemed unreasonable and contrary to the child’s best interests, under the totality of the circumstances.

Third, absent a restraining order or other court order keeping information regarding the pre-school confidential, the residential custodian, has an obligation to supply the non-custodial parent, with notice of any proposed change in provider in a reasonably timely fashion.

Fourth, a joint legal custodian, has a right to investigate and evaluate information about a new proposed pre-school.  If the non-custodial parent believes the selection of pre-school or day care provider is unreasonable and contrary to the child’s best interests, a motion can be filed. At that time, the non-custodial parent carries the burden of proof of convincing the court, by a preponderance of the evidence, that the custodial parent’s selection or change of the child’s pre-school or child care provider is unreasonable and contrary to the child’s health, education, general welfare and best interests.

Fifth, if the non-custodial parent is challenging the reasonableness of plaintiff’s choice of pre-school, merely complaining about the choice is not enough. Rather, there must be a demonstration that there is a specific, more reasonable alternate plan available for providing work-related day care for the child.

Sixth, if the court finds that the selected pre-school selected by the custodial parent is unreasonable, the court may override the custodial parent’s decision and order different day care arrangements including placement at a different pre-school. Alternatively, if the court finds the custodial parent’s choice of pre-school day care plan is in fact reasonable, the court may approve same and may order both parties to contribute to same in the same manner as the cost of any other reasonable day care expense.

Seventh, if the court finds that either party is acting unreasonably on the issue, counsel fees and/or other financial sanctions may be issued by the court in its discretion.

A fair reading of this decision demonstrates that what the courts are really looking for is to make sure that decisions are being made by custodial parents for children in their best interests, and that best interests include a consideration as to the effect on both parents.  To be sure, the issue of pre-school will be one which is added to the list of items to be negotiated in a settlement.

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


Posted in Alimony, Divorce

Change is finally here – On September 10, 2014, Governor Chris Christie signed into law substantial and significant amendments to New Jersey’s alimony law.  The law took immediate effect on that date.  I previously blogged about the now effective changes after the legislature passed the bill during the Summer, and we have prepared an Alert on the final bill that you can read here.

heart and money

Stay tuned for blog posts that more specifically address the changes to the alimony law regarding the duration of alimony, retirement, cohabitation, loss of income and more.


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

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Posted in Mediation/Arbitration

Overshadowed by New Jersey’s enactment of alimony reform, on which we have previously blogged and will shortly provide an update, on September 10, 2014 Governor Christie also signed into law the New Jersey Family Collaborative Law Act.  Collaborative Law is a form of alternative dispute resolution where, as described by the law, an attorney is retained “for the limited purpose of assisting his client in resolving family disputes in a voluntary, non-adversarial manner, without court intervention.”  In other words, the goal and stated intent by both parties is to resolve the matter without litigation, including the provision of full disclosure of information/documentation without the need for formal discovery.  We previously blogged on the positives and negatives of this form of dispute resolution, so the purpose of this blog entry is really to provide the highlights of the new law.


As a general matter, a collaborative law process terminates if either party involved commences a proceeding related to the subject matter at issue (divorce, custody, etc.) other than for the court’s entry of a settlement agreement.  Parties and non-party experts or neutrals are protected from the disclosure of communications, similar to that covered in mediation, with various exceptions delineated in the law.  The collaborative law “participation agreement” must, among other things, be in a record, signed by the parties, state the parties’ intention to resolve the dispute through the collaborative method, detail the confidential nature of communications and applicable evidentiary privilege, and describe the nature/scope of the dispute, as well as how it commences/ends.

Interestingly, the agreement must identify the collaborative lawyer representing each party and contain a statement limiting the collaborative lawyer’s role.  The lawyer and lawyers in that same firm, if any, shall not continue to represent the party in that family law dispute if the dispute is submitted to a tribunal for adjudication.

To ”conclude” the process, the law provides there must either be a signed settlement agreement, or a termination of the process.  A termination occurs in one of many ways including:

1.  when either party gives notice in a record that the process has ended (with or without cause).

2.  a party files a document without the agreement of all parties that initiates a proceeding related to the family law dispute.

3.  either party is subject to, or obtains, a temporary or final restraining order against the other party under the Prevention of Domestic Violence Act.

4.  An action is commenced requesting that a tribunal issue emergency relief to protect the health, safety, welfare, or interests of a party or the defense against such a request is commenced.

5.  A party discharges a collaborative family lawyer.  If this occurs, or the lawyer ceases representation, the process continues if, “not later than 30 days after the date of notice of the discharge or cessation of representation is sent to the parties”, the unrepresented party retains a successor lawyer and in the amended collaborative law agreement, the parties consent to continue and the successor lawyer confirms representation of the party.

6.  A party fails to provide information necessary to address issues in dispute, and the other party chooses to terminate the process as a result.

7.  A family collaborative lawyer ceases further representation of a party.

The law takes effect on the 90th day after enactment.


Any form of alternative dispute resolution can be a major positive over traditional litigation, especially considering the benefits of a private resolution from a cost, time and emotional standpoint.  Collaborative law is truly a great concept, but parties must be fully and completely reasonable, and willing to act in good faith with each other for it to truly work.  Two like-minded people – on an equal playing field without one party overpowering the other (financially, emotionally or otherwise) may be able to effectively proceed with the collaborative divorce process.  Other situations may not prove as ideal.


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

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Posted in Custody, Divorce, Visitation/Parenting Time

An article today on Time’s website discussed the findings of a study comparing the behavioral trends of children of divorce from wealthy and lower income families.   The study, which was conducted by researchers at Georgetown University and the University of Chicago, divided a sample of approximately 4,000 children into three groups by income.  Interestingly, the study also analyzed at what age children are most prone to behavioral issues following divorce.


The report ultimately concluded that children of divorce from higher-income families exhibit greater behavioral issues than those of lower-income families, with the most likely group affected being that of the 3-5 year old age range.   Separately, custody-based research often finds that, barring other potential issues, children are better equipped to handle an equal, shared parenting arrangement as they get older.  The possible reasons for such signs seem to be more speculative than anything else – for instance, “dads, who are usually the breadwinners, often move out of the home so there’s a big dip in household income. Or it could be that the kids have to move to a new neighborhood/school/friend group and the instability takes a toll. Or maybe less-wealthy families don’t take it so hard.”  Notably, however, there was no definitive answer for such results, noting that income differences alone could not be the cause.  For lower-income families, one researcher noted that the quality of the home environment mattered most to “social and emotional well-being.”

Also interesting was the study’s conclusion that parental separation had no impact on kids ages 6 to 12.  As a threshold matter, 6 to 12 is a very large age range and, notably, the study does not seem to parse out exceptions, instead making a blanket statement that there was no impact.  Improvements in behavior were found in those wealthier children – older than age 6 – who assimilated into stepfamilies.  While the article does not delve further, perhaps this is because of the structure provided by a stepfamily unit.  This, perhaps, is also the basis for why children of married couples were found to be more impacted, or exhibit greater behavioral issues, than those of cohabiting parents.

Whether you as a parent need to take additional steps to address such behavioral issues depends on the given set of circumstances and, most importantly, your particular child.  Providing your child with love and support, and always telling them as much, is fundamental to being a parent.  Perhaps the issues, however, are merely a temporary adjustment to the end of the family unit that your child once knew.  Perhaps your child is just getting older and exhibiting signs that, ultimately, have nothing to do with the divorce at all.  Maybe there are issues at school with friends or teachers, or some degree of anxiety caused by another factor not previously considered.

Working with your former spouse to determine the best course of action for your child is ideal, putting aside differences between you for your child’s long-term benefit.  While not all parents agree to a therapeutic route, especially for younger children, it may be the most appropriate path.  There are many different types of therapy that can address a child’s behavioral issues, depending on the specific facts at issue.  For instance, if your child is acting out because he does not want to see your former spouse, or perhaps his relationship with your former spouse is truly damaged and in need of structured, therapeutic repair, a reunification therapist may be appropriate.  Perhaps the behavioral issues result from how you and your former spouse interact with each other.  With the emotional toll of the divorce now behind you, can you work together for the best interests of your children?  Maybe family therapy is needed, or maybe even just therapy for the divorced parents to learn how to work better together.  While sitting in a room with your former spouse may seem less than ideal, the positive impacts that may befall upon your kids could be invaluable and long-lasting.


The results of this study are very interesting, especially when considered on the heels of my most recent post discussing divorce and income inequality.  Should your child exhibit behavioral issues after the divorce (or, perhaps, even during the divorce), it is critical that you take appropriate steps, preferably with your former spouse, to ensure that the child’s best interests are served both in the short and long-term.


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

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Posted in Divorce, Mediation/Arbitration, Practice Issues

Some concepts never cease to amaze, especially when reality television is involved.  Promising an idyllic setting for a “quickie” divorce, the Gideon Putnam Resort in Saratoga Springs, New York, is welcoming couples who want to end their marriage while surrounded by golf courses, swimming pools, hiking trails and spa treatments.  While one can appreciate the calming influence that such an environment may have on an otherwise potentially emotional and stressful situation, I am not quite sure how playing a round of 18 holes is going to help.


The way it works is as follows – for a flat $5,000 fee, the parties are lodged in separate rooms at the resort for the weekend and work with a mediator to reach a resolution and sign a settlement agreement.  The agreement is then sent to a judge, who enters the agreement to officially end the marriage.  Not only does the resort provide mediators, but lawyers as well.  It seems that additional experts may even be available depending on the circumstances of a given case.  Not surprisingly, some guests will participate in a reality television show, while others will keep private their marital dissolution.  Conceptually, the hotel even envisions having group dinners and sessions for multiple divorcing couples.

Whether this sort of arrangement will prove effective remains to be seen, but it does seem like something that would only apply to those looking for a quick out to their marriage, without any concern for who the attorney is, who the mediator is, who the expert is, and the like.  This, essentially, goes entirely against my prior blog entry about selecting the right mediator for your given case.  With any sort of complexities involved, this idea may unravel, no matter how good the massages are at the spa.


Ultimately, the end of a marriage should not be treated lightly and it is imperative that the conclusion is reached with careful attention to detail and equity for both parties involved. Should things go wrong, what may seem like a great concept at a luxurious hotel may, instead, feel like a stay at the Overlook Hotel.


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

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Posted in Divorce, Mediation/Arbitration

Almost every client that walks through my door wants to know how quickly his or her divorce will last and how much it is going to cost.  The best answer that I can generally give is, “it depends.”  It depends on you and your spouse, it depends on the other lawyer, it depends on the facts and legal issues, it depends on the judge, it depends on the county.  So many factors come into play that there really is no definitive answer.  In connection with that inquiry, clients want to know about mediation, usually because he or she has heard that it is a cheaper and quicker way to bring a divorce to a conclusion - when can it happen? how much does it cost? will we have to litigate if we mediate? does mediating mean that my case will end quickly?  Again, there are no definitive answers to these questions because they largely depend on the same points I highlight above.


Mediation is an incredible tool by which to resolve a case, which is why New Jersey courts not only encourage it as a form of alternative dispute resolution, but actually mandate it as part of the divorce process, as well as include it in the Court Rules.  So, even if you happen to be a litigant who is against mediating, you pretty much have little to no choice – the court system will require you to mediate whether you like it or not, because it is almost always better for the parties to privately settle the matter than the court, almost always quicker, more affordable, and the like, not to mention that it removes your case from a very busy court calendar.  Notably, mediation also allows you to settle your case in ways that a trial judge could not ultimately rule following a trial – especially as to alimony and equitable distribution.

To that end, if the mediation process is going to have any chance of success, picking the right mediator is a critical piece of the puzzle.  Selecting a divorce lawyer who knows the mediators, knows their reputations, knows how they conduct themselves, knows how much they cost, and the like, can only benefit facilitating a resolution in your matter.  Do you want a divorce lawyer to mediate your case?  How about a former family court judge?  Does your case need a mediator with a strong, definitive hand, or is a softer touch more appropriate?  Each case is very different, and each requires a different considerations for mediation.  For instance, if your spouse is the type of person who is going to head into mediation with a “litigation mindset”, where there is no compromising, and mediation is really just a passing phase of a longer litigation, then having a tougher mediator may be the right way to go.  On the other hand, if everyone is largely agreeable and can act appropriately with one another, then a softer touch might be the answer.

I recently experienced the power of choosing the right mediator, in what had been a very acrimonious matter that I became involved with more than a year after its commencement.  The parties had already attended mediation before my retention, and it was a complete disaster.  Ultimately it had nothing to do with the quality of the mediator, but rather whether the mediator was the right fit for a given case.  This particular mediator, as part of his style, required that everyone mediate in the same room, which, for this particular case, was never going to work.  The parties did not speak to each other at all, the acrimony was high, and the chemistry was combustible.  The mediator also had a more free form manner, not having “crunched” the numbers, relying more on what the lawyers had to say for their client’s respective positions in formulating a course to proceed.  In many cases, being in the same room and applying this sort of settlement mechanism is perfect.  Here, it was the opposite.

Subsequently, we went to a new mediator and it was evident from the start that she was perfect for this particular matter.  A firm touch with an analytical approach, while allowing the parties to mediate in separate rooms, it was no surprise that we reached the material terms of an agreement in merely two half-day sessions.  My adversary and I both recognized how effective the mediator was under the circumstances, and how she helped facilitate a conclusion to what was a matter seemingly headed for trial.


Almost all parties want to mediate their divorce matter to bring it to an amicable and affordable conclusion.  Selecting the right divorce lawyer, and the right mediator, however, are vital components to achieving that goal.


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

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Posted in Divorce, Practice Issues

For the last few years, at the end of the year, I have reprised a very popular post that I did in the early days of this blog about the New Year’s Resolution Divorce.  We sometimes joke that the early part of the year is “the busy season.”  In fact, earlier this year, Robert Epstein blogged that March was found to be the peak time for divorce filings.


In our experience, the end of the summer/early fall is the second busy season (I’m sure that the nearness in time to the Jewish New Year is purely coincidental.)  These are some of the reasons that we think or have heard this occurs:

  • We got through the summer which should be a happy time for the kids, and if we file now, there is a chance to be done by next summer.  As such, if kids have to move or change schools, it is not during the school year.
  • The long awaited summer vacation was miserable -not because of the location or accomodations – but because of the company.  As such, tensions are exacerbated instead of relieved.
  • Like New Year’s Resolutions, the end of the summer represents the beginning of the school year, the new football season, the new TV season (at least in the old days), back to school sales, etc.  I am reasonably sure that the same reason that people seek the fresh start at New Years is also true here.
  • If the marriage is shaky, spending so much time together could make it worse, as the reasons that it is shaky hit you in the face over and over during this time.
  • One spouse wont help out with the children on family vacations.  This reminds the other spouse that he/she doesn’t help out during the rest of the year either.  If he doesn’t even want to be with the kids on vacation, why are we staying together?

I am sure that there are may more reasons for this phenomena.  Whatever the reason, we await those who see the fall as a chance for happiness or a fresh start – or at the very least, for a chance to make next summer happy.


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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Posted in Divorce, Practice Issues

In recent years, we have been repeatedly cautioned by government leaders and renowned economists that the wealth gap and income inequality in America is only getting worse.  As part of the widening gap, some experts describe a slow disappearance of the middle class, with individuals/families who formerly fulfilled that category now moving either up or down on the wealth scale.

Ultimately, experts conclude that the “rich getting richer” is not the sole source of such inequality, but also, among other factors, that many of the blue collar jobs once relied upon by middle class families to put food on the table have disappeared.  At the same time, many households now have two fully employed parents, and, an overall demand for more affordable products by that same middle class category leads to outsourcing jobs overseas – essentially, one cause perpetuating another.

piggy bank

These issues, among others, are discussed in “Marriage Markets,” (with a link to the NY Times review) a new book by two family law professors, June Carbone and Naomi Cahn that examines why the number of marriages are on the decline, while non-married families and single parents are on the rise.  The book argues that income inequality has led to a decline in marriages, as middle class and lower income American families can no longer invest as they once did in growing a household and in futures of their children.  By correlation, it should come as no surprise that families with greater wealth more often have more stable marriages than those families with lesser wealth, can better invest in themselves and their children, and, should the marriage go south, can better finance a potential marriage dissolution.

While parties seem more willing to move on from a marriage, especially now that every State has some form of “no fault” divorce option, and while the economy has seen improvement since 2008, people still come to me on occasion contemplating whether it is more cost effective for them to remain married – even if they have to live separate and apart.  This sort of decision is troubling in that it handcuffs a couple’s ability to divorce and move on.  From a legal perspective, there is also a strong argument to be made, based on case law in New Jersey, that assets and income continue to accrue and are subject to distribution even after the separation date – especially since New Jersey really has no true legal form of separation.

Similarly, a lack of financial resources may also hinder parties from properly addressing all issues in a divorce, especially as to children.  The cost of attorneys, experts, and the like can be overwhelming for some and, as a result, litigants will, for example, forego the use of an expert when the need for a forensic custodial or accounting analysis may be imperative to fully and completely address a given issue.


While this blog post is less about specific law and practical tips, the primary arguments and underlying thesis of “Marriage Markets” are both interesting and relevant for the future prospects of marriage and divorce in our country.  The wealth gap continues to widen despite governmental measures taken to fend off its occurrence and has touched upon our world of family law in a way that has and will continue to impact how we practice and advocate for our clients.


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

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