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Pertinent Information As It Relates To New Jersey Family Laws

A Tale of Due Process…

Posted in Adoption, Practice Issues

Although most people are familiar with the concept of “due process” in the criminal context, we sometimes forget that due process also extends to civil litigation. “Due process” is basically the opportunity to be heard at a “meaningful time and in a meaningful manner”.

Typically, whenever a litigant is seeking relief from the Court, a motion must be filed, stating the time and place when it will be presented to the Court, the grounds upon which it is made and the relief sought. Although litigants may also seek emergent relief, notice must still be provided to the other party. While the notice requirement is not wholly inflexible, it may only be waived in circumstances where it can be shown that immediate and irreparable damage will likely result to the moving party before notice can be served/informally given and a hearing had thereon.

A common example of this in the matrimonial context is when a litigant is seeking to ask the Court to freeze assets because of a fear that the other side may liquidate or abscond with marital assets. Obviously, if the other side were first notified of this request, they would have the opportunity to do just that: liquidate or abscond with the assets. Thus, in very limited circumstances, the notice requirement will be waived, however, only a temporary order would issue and the other side would then be given the ability to immediately be heard by the Court as to why the relief sought should be ultimately granted moving forward.

In the recent published (precedential) case In the Matter of the Adoption of a Child by M.E.B. and K.N., the Appellate Division gave us a primer on the bounds of due process in a civil context. A short summary of the facts are as follows: The paternal grandparents of a child filed a Verified Complaint for Adoption after what they describe as a “verbal and implied consent of the child’s birth parents, who refused to contribute to or provide for the needs of the child”, essentially abandoning the child to their care.

Once the Complaint was filed, a preliminary order was issued for a hearing and the child was temporarily placed in the paternal grandparents care. Upon receiving this order, the child’s mother, filed an ex parte (i.e., without notice to the grandparents) Order to Show Cause refuting the allegations of abandonment asserting that she never relinquished her parental obligations. The child’s father also supported the return of the child to the mother’s care and for his parents to be restrained from further contact of the mother and the child.

The Court held the hearing on the mother’s application ex parte, again, without the paternal grandparents having notice of the hearing or a chance to be heard. The Court ultimately found that the paternal grandparents lacked standing and dismissed their Complaint for adoption with prejudice. The plaintiffs’ appealed the dismissal of their Complaint given the lack of opportunity to be heard prior to their Complaint being dismissed.

In recognition of a litigant’s right to due process, the Appellate Division reversed and remanded this matter for further proceedings finding,

It is one thing to schedule ex parte review of an application initiated by an order to show cause that also seeks temporary restraints; it is quite another to terminate the litigation on an ex parte basis. If a party demonstrates the need for ex parte relief, the judge considers the matter on the record and, upon a specific finding that immediate and irreparable harm would result were notice given, could issue an order to show cause. The adverse party must then be given an opportunity to be heard, including the chance to show injunctive relief was inappropriate or improvidently granted.

The Appellate Division found that the grandparents were not served with the mother’s pleadings and were not informed that a hearing would be held. Although, as noted above, there are situations in which it can be found that immediate and irreparable harm would occur if notice was given prior to the hearing, no such finding was made and could not be inferred from the record on appeal.

When an injunction is requested, the proceeding to consider the order to show cause with restraints must be on the record, requisite findings supporting relief must be made, and the adverse party must be given an opportunity to be heard on the scheduled return date. Even when restraints are not entered, the adverse party must be given the opportunity to respond to the entry of an order to show cause.

The takeaway from this case is that if you find that an Order has been entered in your case without notice to you and the opportunity to be heard, you should immediately consult with experienced counsel to determine the validity of that order and whether it can be ultimately challenged.

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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.

The Lawyer the Liar

Posted in Practice Issues

The way things have gone lately, I thought it was time to reprise this blog post, originally published in April of 2014.  It is unfortunate for the system and the litigants to have to endure the misrepresentations by people who should know better.

I like a good joke as much as the next person.  That said, like many in my profession, I get sensitive about lawyer jokes.  Often, they are just cheap shots that in no way reflect the reality of what most of us do.  I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”

This one is particularly offensive on many levels.  Justice cannot tolerate dishonesty on the part of the lawyer.  In fact, honesty permeates the Rules of Professional Conduct:  meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful.  There is an expectation in the system that someone is not telling the truth.  That is why judges and juries have to determine who is more credible.  That said, a lawyer cannot allow their client to get on the stand and lie.

(photo courtesy of free Google images.)

Unfortunately, however, lawyers lie all of the time.  Small lies and big lies.  They lie to their adversaries and they lie to judges.  I am not talking about an honest mistake – you believed that documents were not provided, but they actually were.  That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.”  Efforts then digress into addressing the misrepresentation that could simply be avoided.

A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns.  I did not believe this to be true and said as much, but I had only been in the case for a few days.  The judge reamed my client.  When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt.  Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake.  She refused and then it became a much bigger issue.  It was a total and needless waste of time.

That’s a small lie that caused damage.  What about the big lie?  In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client.  The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.

In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise.  She disavowed her own statement.

In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.

Why do lawyers lie?  Some do it to get an advantage in the case.  Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful.  Some do it because it is a personal game – I win – you lose.  Some do it because they are unprepared or did not do what they are supposed to do so they are covering up.  Some do it to cover for their client’s misdeeds. Some do it because they just always lie.  For some, it is all of the above.

What do you do about it?   You raise the issue to the judge – but often, the judge doesn’t do anything about it.  Some times, it takes a trial to prove it and trials are few and far between.  Further, ethics complaints are usually tabled if not dismissed until a litigation is over.  If the perpetrator is a junior lawyer, perhaps you speak to their supervisor – but often that goes no where, because people protect their own.

That said, don’t let it go.  Call the person out.  Be prepared with your proofs.  At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight.  It is untenable when they lie and it does a disservice to the litigants, the courts and the system.  Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst.  And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable.  And don’t tell the big lie, for any reason.


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

Connect with Eric: Twitter_64 Linkedin

NEW JERSEY EMANCIPATION STATUTE SIGNED BY GOVERNOR CHRISTIE

Posted in Child Support, College

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that dramatically impacts upon child support and when/how it terminates.  The new law, which takes effect on the first day of the 13th month after its enactment – February 1, 2017 – is applicable to all child support orders issued prior to, or, or after its effective date.

Critically, the law is more payor friendly than that which previously existed only in case law, providing certainty as to when and how child support will terminate, and implements a form of “capped” age of 23 for termination, as detailed below.  It also alters the rebuttable presumption that child support terminates when a child reaches age 18.  The language and procedural specifics will, in a manner similar to what has/will occur with the amended alimony law, most certainly result in future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age;
  2. a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or
  3. the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

In response to a notice of proposed termination of child support, a custodial parent may submit a written request with supporting documentation to the court including a projected future date when support will terminate, seeking the continuation of child support beyond the date when the child reaches age 19 in the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year; or
  3. the child has a physical or mental disability as determined by a federal or State government agency that existed prior to the child reaching the age of 19 and requires continued child support.

A custodial parent may also file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as approved by the court.

Interestingly, if a court orders the continuation of child support beyond age 19, it must also provide in the order “the prospective date of child support termination.”  If the payor parent disagrees with the court’s decision to continue child support beyond the child reaching age 19, he or she may file an application seeking relief from the obligation.

Probation Termination Notices

Matters involving child support obligations administered through Probation shall require that both parents receive at least 2 written notices of a proposed termination of child support, which shall include information and the request form to facilitate the continuation of child support beyond the date when the child turns 19.  The first notice will be sent 180 days prior to the proposed termination date, and the second at least 90 days prior to the proposed termination date (the second notice, however, shall not be required if a custodial parent’s request for continuation is pending or a new date of child support termination has been established).

Age 23 as a “Cap” for Termination

Critically, the new law provides, “the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age,” except that a child beyond age 23 can still seek an order requiring the payment of other forms of financial maintenance or reimbursement from a parent as authorized by law (so long as it is not payable or enforceable as child support).  In addition, a court, based on an application from a parent or child, can convert – due to exceptional circumstances (such as a physical/mental disability) a child support obligation to another form of financial maintenance for a child who has reached the age of 23.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date for child support that does not exceed the date a child reaches 23 years of age, or to any other financial arrangements for a child that are not designated as child support, subject to the approval of the court.”  This language is fascinating because many practitioners previously argued that language in the emancipation section of a settlement agreement terminating child support at 23 as a “catch all” was somehow against public policy.  The argument is largely now irrelevant, as were many such arguments made about the alimony law prior to its amendment.

In addition, a child support payor can petition the court to terminate child support for good cause prior to the child turning age 19, or contest the extension of child support beyond when the child turns 19.

This law will have a substantial impact on matrimonial practice, and is certainly more payor friendly than the legal standard previously existing in case law form – a continuing trend also found in New Jersey’s amended alimony and premarital agreement laws.  Practitioners should consider incorporating new language and references to the law in their settlement agreements.

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 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 Google free images.

One Family, One Judge? Perhaps Not in the Context of an Act of Domestic Violence

Posted in Divorce, Domestic Violence, Practice Issues

We’ve all heard the maxim “One Family, One Judge” in the context of matrimonial matters. The underlying premise is that one judge in the Family Part should hear the entire case because that judge is intimately familiar with the facts of the case, has observed the parties and their demeanors and perhaps has made credibility findings. One case even described this practice as a “matter of common sense.”

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However, the situation becomes a little bit more murky in the context of domestic violence.

To provide some background:

Often an act of domestic violence results in 2 separate proceedings: one in family court and another in municipal court. This is because New Jersey’s Prevention of Domestic Violence Act references actual criminal offenses prosecuted under the criminal code.  Simply put: the family part deals with the quasi-criminal action – the issuance of a restraining order utilizing the elements set forth under the criminal code – and the municipal court deals with the purely criminal action – the conviction for the actual violation of the criminal code.

With that in mind, does the family part have authority to make a determination as to the issuance of a final restraining order AND take jurisdiction over any resulting criminal action that may be pending in municipal court?

Judge Jones weighs in in the case of M.R. v. T.R.

In M.R., there were three cases that were simultaneously pending:

CASE #1: Wife filed a domestic violence complaint filed on July 2, 2014, alleging that her husband harassed her by coming toward her in a physically menacing fashion, to the point where she used pepper spray in self-defense;

CASE #2: Husband became the complaining witness in a municipal court action against the wife, alleging that the wife had assaulted him with pepper spray in an unprovoked fashion; and

CASE #3: Wife filed a complaint for divorce against the husband on July 21, 2014, who in turn filed a counterclaim.

Case #1, the domestic violence complaint, was ultimately dismissed by the Court, upon a finding that there was insufficient evidence to support the entry of a final restraining order against the husband. However, Case #3, the divorce action, remained pending in the family court. Case #2 likewise remained pending in the municipal court.

As part of the divorce action (Case #3), the wife requested that the court transfer and consolidate the pending municipal court action (Case #2) with the divorce action (Case #3).   The husband opposed the transfer and asked that Case #2 remain in municipal court for adjudication.

Judge Jones considered the motion, which he ultimately denied. In doing so, he relied extensively upon R.5:1-2(c)(3), which states:

“[a]ny non-indictable offense or violation pending in the municipal court . . . may be transferred for trial and disposition to the Family Part pursuant to R.5:1-3(b)(2) if the gravamen of the offense or violation arises out of a family or family-type relationship between the defendant and a victim.”  [Emphasis added.]   R.5:1-2(c)(3). “Sub-paragraph (c)(3) permits transfer to the Family Part of all criminal and quasi-criminal matters pending in the municipal court where the gravamen of the offense arises out of a family or family-type relationship between the defendant and victim.”  [Emphasis added.] See Comment 2.3 to R.5:1-2(c)(3).

As Judge Jones noted, only two unreported decision have touched upon this issue. The first, Brown v. Brown, 196 N.J. Super. 92, 94-5 (Chan. Div. 1984), involved the transfer of a municipal court complaint of harassment against a spouse made by her spouse.

The Brown Court ultimately granted the transfer, stating “[t]his court is familiar with the parties’ situations and is best suited to address related problems as they arise.” However, the Court emphasized that such a transfer is a matter of judicial discretion, to be considered on a case by case basis.

By contrast, the second case, State v. Hall, 203 N.J. Super. 423, 426 (Law Div. 1985), denied the transfer of the municipal case because there was no actual case pending in the family court at the time of the application to transfer.

Against this legal backdrop, the Judge Jones opined that to transfer the matter from municipal court to the family part would give rise to multiple legal complications and conflicts. Primarily, Judge Jones cited the prohibition against utilizing testimony in a domestic violence matter in a simultaneous or subsequent criminal proceeding under N.J.S.A. 2c:25-29(a).  The spirit of the rule would naturally raise concerns if the same judge is left to consider both proceedings.

The Court concluded that because there is an inherent benefit of keeping litigation as free as possible from, at the very least, the perception of conflict and evidentiary confusion, there is “logical value” in avoiding the same judge hearing both the domestic violence action and the criminal action.

Moreover, Judge Jones highlighted the distinctions between the domestic violence actions, as follows:

(1)        The domestic violence action in the family part is filed by the victim, whereas the criminal action in the family court is filed by the State of New Jersey. 

(2)        The burdens of proof in the two courts differ as well, with the former being decided by a preponderance of the evidence, and the latter being decided beyond a reasonable doubt. 

(3)        In the criminal proceeding, the defendant has the right to remain silent to prevent self-incrimination.  However, in the context of a civil domestic violence proceeding, the adverse party may be called to testify against his or her own interest.

(4)        In order for the domestic violence plaintiff to be issued a restraining order, he or she must meet a 2 pronged Silver test: (1) that an act of domestic violence occurred, and (2) that there is a need for a restraining order to prevent ongoing violence and to protect the victim from further abuse.  The criminal court, by contrast, determines whether or not a defendant is guilty of an act of violence and enters a conviction accordingly.  Typically, no civil remedies are addressed.

(5)        In a domestic violence matter, a plaintiff may be represented by private counsel.  In a criminal proceeding, the case may proceed with a criminal prosecutor.  In that regard, there are different obligations to the defendant and there is a specific prohibition against a private attorney serving as a prosecutor.

(6)        In a criminal action, there is a right to pretrial discovery.  No such right exists, however, in a domestic violence proceeding, which typically is a summary proceeding.  Discovery in a domestic violence matter is only granted upon application and in the discretion of the court.

(7)        In a domestic violence proceeding, the case proceeds to a hearing under a very specific timetable – usually 10 days.  There is no such deadline in municipal courts.

Judge Jones aptly stated that the distinctions in the two proceedings are the very reason that the prohibition against the use of testimony from the domestic violence proceeding in a subsequent criminal proceeding exist to begin with.

The Court concluded that “the concept of transferring a municipal court case to family court to be heard by the same judge…is fraught with potential complications, risks and legal pitfalls.” It was for that reason that the Court denied the motion and both cases proceeded in their original intended venues.

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head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

The Doctrine of Fugitive Disentitlement and Its Impact on Child Custody Matters

Posted in Custody, Palimony

The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court’s protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive’s parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that “[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties’ two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, “[a] writ of Ne Exeat [which in Latin means, ‘that he not depart’] shall remain against defendant” and a bond or alternate security was required to be posted. The order also stated that “[t]he Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

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The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff’s claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, “whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists”. Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined “to afford [defendant] the protection of the court while he flaunts the court’s authority from overseas.” Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court’s ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant’s facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today’s ever mobile society, it will be interesting to see in what instances, if any, a fugitive’s parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.

Beware Legal Whack A Mole

Posted in Practice Issues

Sometimes, instead of practicing family law, it feels like we are playing a game of legal Whack A Mole.  You know what Whack A Mole is, right?  For those who don’t, it is the carnival game where the player has a mallet and has to hit the mole that pops up.  As soon as you hit one mole, another pops up, again and again.

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What is legal whack a mole, you may ask.  It is when every time you think that you have a case resolved, another issue is raised, out of the blue.  Often it is an issue that you thought you had resolved.  Often it is an issue of insignificance.  Perhaps it is a request for information that was already provided, or on a resolved issue, or better yet, a list for updated information that wouldn’t likely change the prior resolution.  Dealing with this makes you feel like the proverbial Dutch boy trying to plug the new leaks in the dike.  This is worse than the never ending negotiation that I have blogged about, because there really is no end in sight.

The key to dealing with this is to try to find out who this is coming from.  Is it coming from the other party?  If so, that might indicate that he or she is just not ready to settle the case and move on (especially if there has been extensive and complete or largely complete discovery.)  One of the first posts I did on this blog in 2008 was called All Cases Have a Life of Their Own.  Some times, you just have to wait for the other party to be ready to settle.

More problematic is when the other attorney is the impediment to settlement.  Now, it is one thing when you are trying to protect your client from selling him or herself out by agreeing to a deal that they will surely regret when the guilt, pressure, duress, etc. wears off.  I would argue that it is the attorney’s job to protect the client the best they can in that way, especially where all of the facts are not known – though at the end of the day, the decision to settle is ultimately the party’s.

That’s not what I am talking about here.  Rather, I am talking about when an adversary is obstreperous and an impediment to settlement for no apparent reason.  I have had an adversary that has blown up deals reached in mediation with lawyers present, 5 different times, though it was clear that his client wanted to settle.  I have had adversaries who have refused to allow the judge or mediator speak with their client alone.  I have had adversaries try to storm out of mediation with their client tugging on their arms to stay.  I have had adversaries delay, ask for more information, that they didn’t look at for months, only to then ask for updated information, or updated appraisals, or more depositions, or more experts with no clear direction or end game other than to drag the case out.

If the attorney is the culprit, as opposed to the client, some times it is best to get the trial judge involved.  If the trial judge cannot pressure/craft a settlement, at least she or he will see what is really happening and who is being unreasonable.  Because the issue in these types of cases often becomes counsel fees as the tail wagging the dog, the judge will quickly get the picture and this can impact or negate the offender’s claim for fees after a trial.  And if the nonsense continues, as I have said before, some times you just have to try a case.

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

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

Grandparent Visitation Just Got Easier – Well, Not Really, But At Least There Will Now Be A Uniform Procedure

Posted in Grandparent Visitation

After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state.  Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.

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Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold.  Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases.  The typical complaint which would lay out the facts was now not permitted.  Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic.  While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.

Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases.  In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation.  The trial court initially dismissed the Complaint because the grandparents could not prove harm.  The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..

The Supreme Court affirmed the Appellate Division, holding:

 We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court’s findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter’s life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm.

Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:

First, as applied to a complex grandparent visitation case, the Appellate Division’s case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case.

We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division’s case management recommendations in R.K. provide a practical template for courts and parties.

Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent’s death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent’s knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents’ factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.

Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. …

Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be the welfare of the child.

Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child’s parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child’s status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute.

Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless.  (Emphasis added); (internal citations omitted and otherwise edited for space).

The takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated.  That said, the Court interestingly noted that litigation may not be the answer, when it held:

Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.

Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose.  The future of grandparent visitation cases will remain interesting, I’m sure.

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

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

APPELLATE DIVISION ANALYZES WHAT IT MEANS TO “ABANDON” A CHILD “BY WILLFULLY FORSAKING” HIM

Posted in Child Support, Custody, Estate and Trust Issues, Visitation/Parenting Time

Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.

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These are the facts that you need to know:

  • The parties were married in 1994 and had one child, who was born in 1995.
  • The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
  • Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
  • In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
  • In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
  • In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
  • During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
  • Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
  • From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
  • Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
  • Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

  1. willfully forsaking the decedent;
  2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
  3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.

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 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 digitalart.

War of the Resolutions: A Cautionary Tale

Posted in Divorce, Practice Issues

Yesterday, Eric Solotoff blogged about the phenomenon of the New Years Resolution Divorce.  It happens.  I encourage you to read that post prior to the one below because it provides some useful background on the issue:

It’s the New Year. A time filled with resolutions, promises to change, and commitments to begin anew.  Your marriage is no exception.  You’re fed up – the affairs, the reckless spending or the mistreatment. You’ve determined that this is your year to finally take the road to singles-ville, to start a new life free of this weight you’ve been carrying around for years.

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But…what happens your resolution to break free of your spouse coincides with your spouse’s resolution to recommit to the relationship? He promises things will be different; she will take steps to treat you better; he’ll pitch in more with the children; the “extracurricular activities” will stop. Your spouse promises he/she will magically morph into a different person. All of a sudden, your jaded, tired, fed up self is looking at your future model spouse. And now you’re in a quandary.

So the question becomes, which one of you wins the war of the resolutions? Science says, if you’re looking for a complete personality overhaul, think again.

Brian Little, a professor of psychology at Cambridge University and author of Me, Myself, And Us: The Science of Personality and the Art of Well-Being stated in a 2014 interview that in adulthood, your personality becomes pretty much set in stone.

You can thank your parents for that; many of our personality traits have a very strong genetic component, which remains constant throughout much of our lives. However, in your teens and twenties, your personality matrix evolves rapidly while you mature.  As people enter their thirties and beyond, those traits solidify; change slows to a crawl and requires far more effort, according to Paul T. Costa Jr., scientist emeritus at the laboratory of behavioral science at the National Institutes of Health.

The situation becomes even more complex when dealing with a personality disorder, such as Narcissistic Personality Disorder (NPD). This is because NPD had a serious environmental component – it emerges from an environment in which vulnerability feels dangerous to the person.  In turn, insecure attachment styles emerge, where fears of depending on anyone result in attempts to control the relationship or avoid intimacy altogether. For people with NPD, change would mean unlearning a whole host of feelings that are ingrained in them and they subconsciously believe keep them safe.

Essentially, asking or expecting a person to change would be asking them to act “out of character” – an unremitting show where he or she plays a part for your benefit. Little, says, however, that this act has a serious effect on the automatic nervous system, somewhat akin to anxiety.  You heart rate quickens, your muscles tense – as if you’re experiencing a stress reaction.  Eventually, you revert back to yourself because the whole process of morphing into another person can be both physically and mentally taxing.

The amount of time a person can play another character has yet to be studied. But the question is, do you want your marriage to be the test case?

Now, that is not to say that people have not successfully improved marriages that once were on the precipice of the abyss. However, odds are, if you think your spouse is going to assume a completely different personality to save your marriage, you may just lose the war of the resolutions.

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head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

The New Year’s Resolution Divorce

Posted in Divorce, Practice Issues

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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 the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few 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 2015 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 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.