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

As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.

In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.

The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.

Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.

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 There is no secret that New Jersey is suffering a significant crisis with respect to judicial vacancies. This year alone has seen a significant number of retirements without replacements being named.  The effect on the family courts, and in particular, the divorce docket, has been catastrophic.   I was at a meeting of family lawyers just recently at which the assignment judge of a county in the southern part of the state was kind enough to come and discuss directly with the bar the situation.  And while I deeply appreciated the fact that he did, and the efforts that the judges are making to accommodate the needs of the public, the fact of the matter is that the situation is untenable throughout the state.  In some counties, the situation is so bad that there are no, I mean no, trials for contested divorce cases.  In others, a case will not reach a judge for final disposition for three years,  In several counties, judges have upwards of 500 cases to handle.  Only a superhuman can give a matter the attention it deserves when having that type of case load.  

The purpose of this blog is not to pass blame, nor to comment of the swirl of political posturing that goes on when this subject comes up. Rather, despite the fact that the vast majority of judges that I know are working late nights and weekends, they simply can’t keep up effectively.  And that means that attorneys and litigants have to find an alternate method to resolve their cases in order to save money and get on with their lives and those of their children. Any good family lawyer will have an honest conversation about the cost ridden road to the Courthouse.  Certainly, there are times that judicial intervention is necessary and as lawyers, we are prepared to take a case to the judge. However, alternate dispute resolution is an important piece of the puzzle.

There are several effective methods of alternative dispute resolution that must be considered by litigants.  Some of these are woven into the court system.  Some are complimentary to the system. Before filing for divorce, talk with your lawyer to determine whether mediation, or arbitration is a viable option for your situation.  

Mediation can occur any time during the process, and can happen with or without attorneys. Many times litigants will agree to go to a mediator to resolve their differences and then the mediator will prepare a memorandum of the agreement that the parties have reviewed by their respective counsel.  Sometimes, someone may be uncomfortable going through mediation without legal counsel.  In that case, going with a lawyer can be a cost and time effective method to settle the case. When you go with a lawyer, you can make sure that your rights are protected, and you do not agree to anything without having the opportunity to discuss the ramifications.

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On Friday, I blogged on the judicial estoppel aspect of the Romano case decided last week by the Appellate Division. While that was the major issue in that case, there was another part of the case that jumped out at me, when I read this line related to the court's valuation of the husband's business and calculation:

John also maintains that Judge Becker should not have accepted Dana's expert testimony with regard to the value of his business and the income it generates. John did not provide sufficient reliable information to allow Dana's expert to use valuation techniques based on tax reporting, so the expert was forced to consider the family expenses as a means to gauge the income generated by the business.

This scenario is not uncommon in divorce matters where a sole proprietor provides neither complete business records nor reliable Internal Revenue Service filings. We defer to Judge Becker’s fact-findings concerning the value of the business and its revenue.  (Emphasis added).

Unfortunately, when dealing in cases with small (and some times not so small) businesses, this is a common occurrence.  Often, it becomes a game of "tell me how much you can find and I tell you how much I have."   In this case, the non-owner has the laboring oar to try to reconstruct the exact income.

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We have all seen and heard those familiar words in the title of this entry in moves or on TV.  This is part of the "Miranda" warning administered by a police officer when they are arresting someone.  Do these words also have a place in divorce court?  Not in the same way, but in reality they do.

Other than settlement communications, attorney/client and other privileged communications, everything else is just about fair game.  That is why Facebook, emails and texts have become such a treasure trove in divorce cases as people freely put things in writing that they might not otherwise say, and perhaps even broadcast it to the world.

But what about what you say in another court in another case?  Can that be used against you?  Sure can.  The concept is called judicial estoppel, and it was on display again yesterday in the unreported (non-precedential) decision from the Appellate Division in Romano v. Romano.

Without getting in to all of the details of this case, the relevant details relating to judicial estoppel are as follows,  On the wife's name was on the deed of the marital home, a finding made by a judge during a domestic violence trial, despite the husband claiming he was on the deed.  Thereafter, the husband filed for bankruptcy relief.  In that filing, he answered "none" on the part of petition asking if he had a legal or equitable interest in any real property.  In the later divorce case, he listed the aforementioned home as a marital home subject to equitable distribution. 

The trial judge awarded the home to the wife based on the husband's representation to the bankruptcy court that he had no interest in the property.

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This being a family law blog, we talk about alimony a lot.  One reason is that, because there are no guidelines, only factors to consider, alimony is one of the more difficult issues to resolve.  How many years should it be for?  When is it permanent?  What does permanent really mean?  Is there a rule that you get one year of alimony for each year of the marriage or you get alimony for half of the length of the marriage?  Is there a rule of thumb (formula)?  In fact, we have recently blogged twice on that issue alone.  In one post, wenoted that the Appellate Division noted unequivocally that a court could not use a formula. In another, we noted that the "rule of thumb" can be used by an expert in a legal malpractice case regarding a divorce to determine if the attorney may have committed malpractice. 

An unreported (non-precedential) Appellate Division decision released on January 12, 2012 in the case of Newman v. Newman touched on a few of the above issues.  While not boring you with all of the details, the following are the relevant facts.  The marriage was just under 13 years in length and the husband was 51 and the wife 40 at the time of the divorce. There were two children of the marriage.  The Court imputed $122,300 to the husband and $45,000 to the wife for support purposes.  The husband's actual income was approximately $88,000 but he was provided free housing as an in-kind benefit which accounted for the difference between his cash income and the amount used for support.  The court awarded $27,000 per year in alimony.

Fun facts of this case: (1) the court awarded 10 years of alimony in a marriage of just under 13 years - a result that the Appellate Division deemed "reasonable"; (2) though budgets and factors were analyzed, when you do the math, the alimony was just under 35% of the difference - curiously close to what the so called "rule of thumb" would result in; (3) the court actually quantified an in-kind benefit - this is hardly done often enough though the Child Support Guidelines would seem to require it; (4) the trial judge deemed this 12 1/2 marriage to be "fairly long term"; (5) the husband's counsel fees alone were more than $100,000 yet he appealed a $5,000 award to the wife's attorneys.

Clearly, alimony cases are fact sensitive and, if tried, the result could vary from judge to judge.

_________

Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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The substantial weight placed on every parents’ entitlement to have their child bear their surname is paramount in the law of New Jersey, and codified by statute. N.J.A.C. 8:2-1.4.

Where both parents cannot agree upon a surname for a child at the time of a child’s birth, both parents have the legal right to provide a surname for the child, with the child’s name being alphabetically hyphenated to reflect the name chosen by both parents. N.J.A.C. 8:2-1.4(a)(2). Deference will only be afforded to the parent with custody of the child in the event the other parent is “unavailable” at the time of the child’s birth. N.J.A.C. 8:2-1.4(a)(1).

But what happens where the “unavailable” parent has been unduly deprived of his right to attend the birth of his child due to the biological mother’s failure to notify the parent of the existence (or birth date) of his child?   This author suggests that where a parent was involuntarily unavailable at the time of his child’s birth as a proximate result of the biological mother’s wrongful actions, said parent must not be deemed “unavailable” for purposes of depriving that parent his right to name his child. Both equity and logic follow this proposition. Had the “unavailable” parent been appropriately advised by the biological mother as to his parental status (or properly notified as to the birth date of the child), he would have had the opportunity to attend his child’s birth and to provide his child with a surname to be hyphenated alphabetically with the surname chosen by the biological mother. Surely, the intent of the law was not to reward a mother’s deception by granting her sole authority to provide a surname for the child, while simultaneously punishing the unknowingly absent parent by denying him his legal right to have his child bear his name. 

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Oftentimes, when a party to a divorce action is a partner in a small company or partnership, suspicion falls to the other partner or business. I am often told by my client that he or she is sure that the other partner is helping hide money or engaging in some behavior in order to lower the value of, or the income from the company. Not surprisingly, the question then arises of whether the company itself or the other partners can be brought into the divorce action. Except in rare circumstances, the answer is generally no. 

The rules of court govern when a non-spouse can be joined to a divorce action. First, in order to bring in a non-spouse, the moving party must show that the company or partner is what is known as an “indispensable” party. According to Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995), “courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.” This means that a corporate party may only be joined if it would be difficult, if not impossible for the case to proceed without the addition of the corporation. This is usually not the case. Even when the company or other partners are not actual parties to the divorce action,   the Rules of Court provide ample mechanisms for litigants to obtain discovery from non-parties, see, e.g., R. 1:9-1 (issuance of subpoena to non-party for attendance of witness); Rule 1:9-2 (issuance of subpoena to non-party for production of documentary evidence); Rule 4:14-7 (issuance of subpoena to non-party to conduct discovery depositions). 

The Rules are designed to make sure that all necessary information is available to the court so it can make a fair decision in the divorce. Thus, complete financial records of the company are generally available for review. The rationale behind this makes sense. If at any time it could be said that a company or business partner is an interested party due solely to the fact that one of its members is getting a divorce, it would throw the entire business world into disarray, not to mention an already over-taxed family court system. 

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Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina.  I had the occasion, last week, to read her excellent article on her blog entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant's and Clients."  I thought that the article was so good that I asked Melissa if I could re-post it as a guest blog on this blog, and she graciously agreed.  Her article is as follows: 

In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account. Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel. On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account. The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent. In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence. One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case. However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook. One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting his client’s private (and irrelevant) information.
 

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For the last few years, I have posted on the phenomenon of the New Year's Resolution Divorce.  For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers.  As such, given that the new year is near, I thought I would share that piece again.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Out of curiosity, I typed "New Years Resolution Divorce" into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to "new year, new life". Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the "improving ones life" camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In 2010 and 2011, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last two years than in any years in recent memory. Moreover, we have heard of more people telling their spouse it "is over" before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn't want to wait until the new year to advise their spouse. Whatever the reason, we await those who see 2012 as a chance for happiness or a fresh start. Happy New Year?!?!

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.
 

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I was at a family law seminar last week where one the speakers was a well known rabbi in northern New Jersey.  The rabbi touched on many subjects, one of which was the "Get", aka, the Jewish divorce.  In the Jewish religion, a woman may not remarry until she has a Get from her husband, and a divorce in the Family Court does not equate to a divorce in the Jewish religion.  In such an event, she is known as an "Agunah" (anchored).  In fact, the couple are still considered married until the Get is issued.  As a result, should the woman remarry, in the eyes of Judaism it is considered an act of adultery, and any children born therefrom are deemed "mamzerim"  (illegitimate).

We have blogged on this subject before, and links to those articles can be found here and here.  To me, this is always a fascinating subject, and the stirring/confusion that seemed to arise in the seminar room upon its discussion demonstrates that it continues to be of interest from both a practical and intellectual standpoint for many who have encountered the issue in their personal lives or practice. 

With that, it was almost coincidental that the Appellate Division just released a new unreported (not precedential) decision in Lowy v. Lowy, where the appellate court found that the trial court exceeded its authority by compelling the husband to give the Get, so to speak.  The parties were divorced in 2004 when the family court issued a dual final judgment of divorce.  Incorporated in that judgment was the decision of the Bais Din - Jewish rabbinical court - which addressed a variety of issues including, but not limited to, custody, child support and asset distribution.  Notably, the rabbinical court's decision did not require the husband to provide the wife with a Get, simply stating that if the parties arranged for one, that the wife would pay for the "Get fees" incurred. 

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It is not unusual to use a three or five year average of someones income when calculating alimony and/or child support if their income fluctuates.  Why does income fluctuate?  Sometimes people earn commissions based upon sales which vary from year to year.  Sometimes the economy or other reasons dictate how much of a bonus they get.  Some times deferred compensation, when it vests and/or is cashed in, yields more in some years than in others.  There are many reasons why income can fluctuate.  As such, both the case law and child support guidelines advise that we should use an average when calculating support.

That said, is this always fair?  What do you do in cases where it is clear that the prior income wont be repeated?  That was the issue in the case of Harwelik v. Harwelik, an unreported Appellate Division opinion decided on December 19, 2011.  In this case, the husband's average income was about $300,000.  However, this included both short term bonuses that he was able to defer and long term bonuses that had a 3 year vesting period.  In July 2006, when the husband's employer, Verizon, sold most of its international assets, his title was downgraded from director to manager. As a result of the change, he was no longer eligible to receive long-term bonuses, although the bonuses previously
granted would still vest and be fully payable. In addition, as a manager, plaintiff could no longer defer the short-term bonuses he received after 2006.  When excluding this deferred compensation from the average income, it was substantially less.  That said, the trial court used the $300,000 average.

In a confusing opinion, the Appellate Division affirmed the use of an average but reversed the use of the $300,000 number because it included the deferred compensation that the husband no longer had, through no fault of his own.

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In August 2011, I posted an article on this blog entitled "Appellate Court Rejects 'Rule of Thumb' Formula to Calculate Alimony - Sort Of."  In that article, I noted that there was a dirty little secret used by judges and lawyers in New Jersey to come up with a "ball park" as to what alimony should be. This "rule of thumb" does not take into account all of the statutory factors. Rather, the formula simply subtracts the lower income (real or imputed) from the and multiplies the difference by a percentage. I have been told that that percentage is 30% or one-third in the northern part of the state and 25% in the southern part.

More importantly, I noted that judges really cannot use this formula and must make findings considering the law and all of the statutory factors.  This post was as a result of a case where the judge seemingly used the formula to determine alimony.  The Appellate Division remanded the matter to the trial court to determine alimony using the alimony factors.

So much to my surprise, a new case came out yesterday emanating from a legal malpractice case filed by a litigant against her divorce attorney.  Lo and behold, the Appellate Division notes that using this "rule of thumb is an appropriate way to calculate alimony. 

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A little more than a year ago, we blogged on the reported Appellate Division Case, Tannen v. Tannen, which addressed the issue of trusts in the context of family law cases.  Relatedly, we blogged on the impact of income from a discretionary trust and whether it reduced a party's need.

In Tannen, the trial court, relying on the newest version of the Restatement of Trusts, required the trustee of a discretionary trust to make distributions to the beneficiary of the trust. Though the trust assets earned significant income, there was no requirement in the trust document for the distribution of the income to the beneficiary. 

The Appellate Division reversed, holding that by applying existing law, which has incorporated various provisions of the Restatement (Second) of Trusts, Wendy’s beneficial interest in the Wendy Tannen Trust was not an “asset held by” her for purposes of N.J.S.A. 2A:34-23(b)(11) of the alimony statute. As  such, the panel determined that no income from the Wendy Tannen Trust should have been imputed to Wendy in determining Mark’s alimony obligation. Addressing the trial court's reliance on the newest Restatement, the Appellate Division noted:

[a]s a court of intermediate appellate jurisdiction, we do not presume to adopt the Restatement . . . as the law of this state and apply its provisions to the facts of this case. Given the significance of its principles in the context of [the New Jersey statute dealing with the power of a court to impute income to a party in a divorce action), such determination would be more appropriately made by our Supreme Court.

As a result, as practitioners, we all awaited the Supreme Court's decision on this expecting that they would tell us one way or the other whether trial court's rationale would become the law of this state.  Doing so might have weakened the sanctity of trusts, but might have been consistent with the jurisprudence of this State that is typically deferential to and supportive of the support recipient for public policy reasons. 

The Supreme Court decided - drum roll please - :The judgment of the Appellate Division is affirmed,
substantially for the reasons expressed in Judge Messano’s opinion of the Appellate Division reported at 416 N.J. Super.248 (2010)."  This one sentence opinion is an anticlimactic end to what could have been a very interesting discussion of an important legal issue.  Because Judge Messano deferred to the Supreme Court on a policy issue, as a student of the law, it would have been interesting to hear our high court explain their rationale given the limitations that the Appellate Division expressed in their opinion.

_______________________________________

Eric 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, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or esolotoff@foxrothschild.com.



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In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We've posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court's Orders denying Ms. Whyte's motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties' 2008 Property Settlement Agreement ("PSA").

The parties' 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal's Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal's parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.

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