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

Picture this - two spouses in a matrimonial dispute.  The husband (or former husband) files a motion to reduce his alimony.  In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income.  On the flip side, the wife files her response to the husband's motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her.  Not surprisingly, the two versions of events could not be more diametrically opposed.

In that scene, what is the trial judge supposed to do?  Is he just supposed to take the husband's word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support?  Is he supposed to believe the wife's response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.

Generally - but, of course - not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party.  When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful.  Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree.  If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are. 

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In a story likely to make men worldwide a bit more insecure about themselves, a Taiwanese woman recently procured a divorce from her husband, in part, because he had a small penis.  Making matters worse was the wife's quote that "His penis is so small, like a kid's, only 5 centimeters long.  We've never had sex in our entire marriage."  

Likely in an effort to keep his parts private, the husband allegedly refused to have sexual intercourse with his wife prior to the marriage, citing religious reasons.  It was only on the parties' wedding night when the wife first discovered the "issue."  Notably, however, the wife also claimed that the husband was impotent and unable to fulfill his responsibility as a husband (in a response that most men could not argue with, the husband simply preferred to fulfill his duty in the morning, and was too tired when she came calling at around midnight).

This case brought to mind the recent matter, also subject to tabloid fodder, where a man was granted a divorce because he claimed his wife was ugly.  His claim was that their child looked nothing like the wife, and it was then that the wife revealed that she had undergone massive plastic surgery to make her more physically attractive.

Are these cases on the far side of bizarre?  Absolutely.  Do they provide the sort of subject matter that the New York Post, Huffington Post and Daily Mail feast on for readers.  Certainly.  How then, can they possibly relate to New Jersey law?  Well, as we have blogged about in the past, New Jersey is a "no fault" state, where people typically obtain a divorce based on irreconcilable differences without getting into such tawdry claims like a man's package size or a wife's looks.  

These types of claims, however, may be a basis for an annulment in New Jersey.  As many readers may know from the ongoing Kardashian/Humphries saga, an annulment nullifies the divorce retroactively, as if it never happened.  New Jersey's annulment law may be based on several claims including bigamy, duress, lack of age (non-age), incapacity, impotence, incest, and fraud.

Without getting into the details of what each of those options means, for the sake of this post and the husband's dignity, we can focus on the claims of impotence and fraud.  Here, aside from the husband's alleged lack of stature, the wife also claimed that the husband was impotent and unable to fulfill his husband-type duties.  The wife added that she did not discover this to be the case until the parties' wedding night.  In New Jersey, she could, as a result, potentially have a claim for an annulment based on the husband's impotence.  Whether such a claim, or that with the so-called "ugly" wife could fall under a claim of fraud is a stretch, but so are the facts of these cases.

While I am not sure what lessons can be learned here, one thing that can be said for sure is that, thankfully, in New Jersey, it is not the size that matters.

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

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We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter.  Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of "resolving" such matters.  As a family law attorneys, we frequently encounter domestic violence as a component of our practice.  Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.  

What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence.  Countless matters come across our desks involving legitimate, truthful victims in need of the law's immediate protection from an abusive defendant.  Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out.  Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.

On the other hand, many cases - typically in the context of an ongoing divorce matter - involve a litigation-minded spouse simply looking to get the proverbial "leg up" over the other spouse in that separate, but related matter.  Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO.  There are several well known cases addressing the judiciary's obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common. 

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Following up on my most recent blog post discussing pressure tactics used by one spouse against the other to force an inequitable settlement, I wanted to focus on the example where one spouse tries to "get around" the lawyers to privately discuss settlement with the other spouse.  In my prior entry, I noted that a financially superior spouse will often take this tack to impose his desired terms of settlement upon the other spouse.  The day after the Court enters a Judgment of Divorce ending the marriage, the financially inferior spouse wakes up and regrets the deal she just made.

While I am not generally against the notion of spouses talking to each other in an effort to resolve their matter, the involvement of lawyers is key for conveying notions of what is fair or unfair.  Here are a few questions that come to mind:

1.  How do you know whether the alimony and child support are fair?

2.  How do you know whether the equitable distribution is fair?

3.  How do you know what is an appropriate custody and parenting time arrangement?

4.  How do you know what you are entitled to under the law as a spouse, parent and litigant?

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There can be many benefits to arbitrating your case, rather than litigating your case through the court system including, but not limited to, a faster proceeding, a more amicable process, decreased litigation costs (despite having to pay the arbitrator), a jointly selected person to preside over your case (perhaps a retired family court judge or an experienced family law attorney), and greater privacy in your matter (especially encouraged in matters involving potential tax issues).  In a move designed to further the use of this private, alternative dispute resolution method between parties in family law matters, the Supreme Court of New Jersey Family Practice Committee has proposed a new "arbitration track".

Interestingly, this new rule would allow the court system to still keep an eye over your matter, impose time limits on the length of the matter, provide specific procedures for parties to follow, and actually incentivize parties to consider this method by giving priority to an arbitration, as if it were an actual trial.

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There is never a shortage of new and interesting stories involving social media that impact upon our world of family law.  We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding. 

Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.

The basic facts were relatively straightforward.  The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement."  In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year.  In 2010, Mom commenced the first proceeding to increase her parenting time.  Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.

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Recently I posted about questioning whether your own attorney knows what he is doing and, as part of that question, whether the attorney knows the law surrounding your divorce or related family law matter.  A related question worth discussion is whether you know and understand the law and how it impacts your case.

With busy schedules filled to the brim with jobs, childcare responsibilities, and other daily stressors, I do not want my clients to undertake the unnecessary burden of purchasing a family law textbook and learning its contents front to back.  I do, however, encourage my clients to at least become familiar with the main points of the law.  For instance, most clients seem to know the general principles of equitable distribution in New Jersey - i.e., most assets, under the law, are subject to a 50/50 distribution absent any other factors, credits, or details; most clients also know, and readily offer, his or her awareness of New Jersey's permanent alimony option. 

It was a recent incident that brought this issue to my attention.  During a first meeting with the parties and a custody expert in a very acrimonious matter, the expert asked one spouse whether her lawyers had explained to her the law of relocation.  She answered "no," despite relocation being one of the primary issues in the case and her desired result.  The expert then asked if her attorneys had made her aware of the Supreme Court of New Jersey's decision in Baures v. Lewis, and the Appellate Division's decision in O'Connor v. O'Connor, each of which are seminal cases on the issue of relocation.  The wife answered "no" to each.  Our client, by contrast, was aware of these cases because we took the time to advise him of the cases, and explain their underlying principles.  The expert then directed the wife to ask her attorneys to explain to her the law and those cases.

What is the lesson to be learned here?  If your client is going to spend tens of thousands of dollars, if not more, litigating an issue, make sure that he or she understands the law.  If there is a lack of understanding, or lack of awareness, then how is he or she supposed to know whether their position is reasonable, whether it is worth litigating over, and whether to settle?  An informed client better knows the risks, perils, pitfalls, and chances of success, no matter what area of law is involved.  In family law, where the stakes are often higher and more emotional, it is even more critical. 

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

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Clients frequently ask whether it is appropriate for his or her spouse to exercise parenting time with the children in the presence of the new significant other.  The questions usually go something like this:

• Can she be there when the kids are there?
• Should they be sleeping in the same room with the kids right down the hallway?
• How can he be there with the kids when I have not met him?
• Does this impact our custody and parenting time dispute?
• Are the kids going to get mixed messages?
• Should we bring this to the court's attention and, if we do, will the judge even care?

These are just a few of the questions that may arise when your spouse starts dating someone in the middle of the divorce and wants to introduce the children to that person, have parenting time with that person present and, perhaps, have overnight parenting time with the kids just a few feet away in the room next door. 

With the changing times come changing attitudes towards such parenting time.  Exposing the children to a new girlfriend or boyfriend is not nearly as taboo as it once was, and, at least in New Jersey, it is generally accepted.  While this is an issue that can always be discussed between the parties and counsel, and while there are always certain cases where a judge might think twice about exposing the children to a new significant other, such as if there is a suspected harm to the children in doing so, there is usually no longer an issue. 

I find that judge's are less willing, however, to allow overnight parenting time, at least during the divorce, depending on a variety of factors including, but not limited to, the circumstances surrounding the new relationship, the sleeping arrangements, and the like. On the more extreme end, I recently had a case where my client's spouse had an affair and then demanded to exercise her overnight parenting time with the children present where the kids were aware of what was going on.  Evaluating the circumstances at issue, the trial judge sensibly precluded the boyfriend's presence during the wife's overnight parenting time. 

However, as opposed to Alabama - as highlighted in Eric Solotoff's recent blog post - such conduct will also likely have little to no impact on a custody dispute.

Thus, while you may dislike the idea of your children meeting the new boyfriend or girlfriend, changing social norms dictate that it is more likely to be accepted than not.  With that in mind, divorcing parents should work together to make the children understand and feel comfortable with the changing situation.  The dating spouse should take caution in how, when and where the children should first meet the new person in their life.  Ultimately, courts are going to watch out for the best interests of the children, and any hint that the situation poses a negative to the children will be immediately addressed as necessary.

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

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It seems that moving parties are more often trying to overcome the defects of their motions by arguing that a plenary hearing should be held due to unresolved questions of fact or issues of credibility.  In other words, the litigant asks the court to hold a trial at some point in the future because the party asserts that the court cannot properly resolve the party's motion simply by reviewing the disputing positions of the respective parties set forth on paper. 

While the case law indicates that a court cannot resolve issues of credibility or disputed facts without a trial, involving testimony, properly submitted evidence and the like, litigants often try to use such case law as a crutch to get past the fact that their motion should be denied on its face.  What often happens, as a result, is that a court will err on the side of caution in the realm of judicial discretion and grant the hearing.  The collateral damage is the incurrence of additional counsel fees, and substantial time before the motion is actually decided, thereby leaving the parties in limbo.  While hearings are often necessary to resolve legitimate issues, the question is whether the issue is always legitimate.

For the financially superior moving party, this may be exactly what he or she wants, as convincing a court to grant a future hearing can be an effective tactic to pressure the financially inferior party to settle.  While that party can seek counsel fees from the court to help take them through the litigation against the other party on an even playing field, there is no certainty that such fees will be granted.

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Litigants who are displeased with the outcome of a judicial decision can rest assured that there exist multiple avenues by which a review of the decision may occur – mainly, in the form of a motion for reconsideration or an appeal.  This post focuses on the reconsideration route, which, despite the large number such motions that are filed, is actually supposed to be quite strict in its application. 

As a matter of common sense and an effort to avoid an even worse judicial calendar backlog than that which currently exists, reconsideration applications are not simply a way for the unhappy litigant to get another “bite of the apple”.   More often than not, however, it seems that reconsideration applications are exactly that –a way for the dissatisfied party to be heard again on the same issues with the hope that the trial judge will simply change his or her mind. 

Rule 4:49-2, which applies to reconsideration motions, does not provide much by way of direction.  Rather, it focuses largely on the deadline for filing.  It states:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.  The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.  

Various cases have fleshed out what constitutes a sufficient basis for reconsideration:

• The court’s decision is based on plainly incorrect reasoning;
• The court failed to consider evidence;
• There is good reason for it to reconsider new information that was not available at the time of the prior judgment/order; 
• By correlation, the motion may not be based on facts known by the moving party prior to the entry of the judgment or order; and
• The motion may not simply be an effort by the moving party to reargue the motion and expand the record – the motion is not an opportunity for the previously losing party to attempt a second “bite of the apple”.

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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as Harmful as Physical Abuse."

While some of the local programs Aaron discusses for his county may not be available in New Jersey, the piece provides a good explanation of the issues and I encourage you to read it.

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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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All too often I hear from clients about how they should end up with a specific result in their case because their friends went through divorces of their own and ended up with that desired result, or something similar.  I can certainly sympathize with a client who want to talk to their loved ones and other people who have gone through what they are going through to not only make sure that they are getting a fair result, but also for the simple purpose of comfort during a stressful time.  

It is critical, however, for each litigant to understand that every case is different and rests on its own facts and circumstances.  Each set of parties are also different from case to case, and as a result, each outcome is different.  It is always important that a client understands this to be the case as we explain to them the divorce process, what the law is and how it is applied, and what reasonable expectation he or she should have as to how the results received by others.

For instance, I learned from another contributor to this blog that whenever a client asks how long their case is going to take, the answer is generally "it depends."  It depends on you.  It depends on your spouse.  It depends on the facts of your case.  While matrimonial attorneys often have a preliminary sense as to what alimony or equitable distribution may be based on prior experience, no one can look into the future to see exactly what will happen.  Most clients want the divorce process to be as short and amicable as possible, and, from what they have seen or heard, expect only the longest and most acrimonious divorce imaginable.  Thus, from the very start the client must be made aware that the length and outcome of a case depends, in large part upon the parties themselves.

There is, perhaps, no better example of when this occurs than with the issue of alimony.  This is likely because it is generally a "hot button" issue, especially in New Jersey where alimony reform has been the subject of extensive recent discussion and attempted legislative change.  Also, unlike child support, which is generally based on the formulaic child support guidelines (unless further analysis is required where the parties' collective net incomes exceed the guidelines' limit), and unlike equitable distribution, which is generally a 50/50 split of marital assets (except with the distribution of the marital interest in a business), alimony is, perhaps, subject to greater shades of gray.

One of the first questions that I am always asked when it comes to alimony is for how long the alimony will be.  The question is then usually followed by the client stating how long the marriage was and what their understanding is from other people as to when permanent alimony comes into play.  Interestingly, while the length of the marriage is certainly an important factor, litigants often seem to treat it like the only factor, despite the alimony statute listing no less than fifteen factors for consideration. 

While there are certainly some predictors and practices to help advise a client in determining what alimony may be, there is no set of alimony guidelines or formula for calculation.  Rather, there are the factors I reference above, each of which is applied to the specific facts of a given case.  Thus, while the comfort afforded to a client in speaking with their loved ones is a strong draw, we as matrimonial attorneys must instill in them the notion that no result will ever be the same (nor should it be), especially in the context of settlement, where there is commonly a give-and-take between the issues of alimony and equitable distribution.  

Thus, while getting by with a little help from friends is often essential to providing comfort, advice, and compassion in a time of need, it is the matrimonial attorney who possesses the level of expertise upon which clients rely to take them through the divorce process and achieve a desired result under the circumstances of their specific case.  

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

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Reading and considering Eric Solotoff’s blog from earlier this week regarding the benefits of settlement, it is also critical to know when to settle and, quite frankly, whether to settle at all. This especially applies to those current or former spouses who simply cannot afford to litigate against a financially superior former spouse. This situation is often referred to as litigating on an "uneven playing field."

Trying to some degree to place myself in your shoes, it can only be an extremely difficult decision whether to, once again, go up against the other party with the bottomless wallet, or just settle for what they want and get it over with. These decisions may not only have an impact on your own wallet, but also on your family's overall well being, especially if children are involved. Too often, the other party knows this to be the case, which is why they will continue to file or threaten to file motions in the hope that you will eventually "give in" under the pressure.

This blog should not be taken as a sign of encouragement to litigate a case, but rather as a cautionary note for what you, as a litigant, may be sacrificing with your decision. Ultimately, it is you who has to wake up in the morning and be comfortable with your decision, which is why having all information at your disposal is, perhaps, the most important part of the decision-making process. 

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The times, they are a'changing - at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of "texting" from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

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The New Jersey Judiciary website provides each days published and unpublished Appellate Division decisions.  If you read this blog with any frequency, you know that we often write about the decisions that are released.  Today there were three decisions from post-judgment divorce cases.  We will likely blog in more detail about some or all of them in the future.  What is interesting is that despite the fact that historically, appeals succeed only approximately 20% of the time, there were reversals in all three cases. 

In one, alimony was modified and permanent alimony was awarded without the court holding a plenary hearing (i.e. trial) on the contested issues. 

In another, the trial judge modified child support, multiplying the old child support amount  by the percentage increase in the plaintiff's income.  The Appellate Division held that a simple mathematical calculation does not comply with the mandates of the statute and case law.  They further held that while the percentage increase is an important factor in determining the support obligation, it is not exclusive and does not relieve the trial judge of performing the required analysis
prescribed by the statute and case law.

In the third, there were conflicting certifications regarding a husband's application to reduce support and the wife's cross application for enforcement.  Not only was there no plenary hearing ordered despite conflicting certifications, there was not even oral argument on the motion allowed despite both parties requests for same.

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Following on the heels of Eric Solotoff's recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator's involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff's indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator's indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator's fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff's grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.

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Visiting a divorce attorney for an initial consultation can be a difficult and intimidating proposition.  For some, it is the realization that their marriage may be over.  For others, it is simply the discussion of such deeply personal matters with a stranger.

Nerves or trepidation aside, the main purpose of the initial consultation is to learn about the process and understand what your rights and obligations could be.  The law is never black and white but has many shades of gray.  A good consultation will explain the black and white and touch upon the relevant areas of gray. 

The initial consultation is also important because this process lets you interview your potential counsel.  Not only is it important that you find the attorney you plan to hire to be competent and best able to represent your interests, but its important that you also like your potential counsel.  Sounds trivial but keep in mind that your divorce lawyer is someone who is quickly going to learn the good and the bad of you and your most personal relationship, your marriage.  Secrets aren't helpful and a level of trust is required.

So what can you do to make sure you get the most out of this initial consultation and at the same time provide counsel the relevant and important information needed?  Here are some suggestions:

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Perhaps its the stress of family life during the holiday season, but many clients of late have claimed that the supporting spouse has stopped supporting the family as he did during the marriage.  The reasons are varied, but often of the same cloth - i.e., the payor spouse claims that he is now earning less money than before, the payor spouse claims that the payee spouse is overspending (despite there being no change from the marital lifestyle) and believes that the supported spouse should get a job after having never worked during the marriage, or, most egregiously, that they simply believe that the marriage is over and a support obligation is over unless a Court directs otherwise.

These situations often leave the supported spouse afraid and wondering how they are going to meet everyday expenses for herself and the kids, while also litigating a divorce matter against their financially superior spouse.  Often this is part of the supporting spouse's underlying strategy - economic coercion, i.e., essentially trying to force the supported spouse to settle under his terms without going through a protracted litigation.

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Following on the heels of an earlier blog entry this week addressing "alimony escalators" in the context of proving a change in circumstances meriting a decreased alimony obligation, a new unreported (not precedential) decision from the Appellate Division in the matter of Eick v. Eick, found that the husband had fulfilled his initial "changed circumstances" burden meriting the matter being sent back to the trial court for a plenary hearing on the issue. 

In Eick, the husband was a self-employed bookbinder who was obligated to pay permanent alimony to his former spouse pursuant to a February 2007 property settlement agreement in the amount of $1,500 per month, as well as $2,000 per month in child support for the parties' two younger children (a number agreed upon that went beyond the child support guidelines calculation).  Critically, the PSA established that such figures were based on an income of $117,000 for the husband and $29,000 for the defendant.  As an important aside, it is important in any settlement agreement to note what incomes were utilized to determine support so that a baseline figure exists should the issue arise in the future.

In March 2009, the payor husband filed a motion to reduce his support obligations based on an alleged change in circumstances - a claim that his business had "declined dramatically" due to online research tools utilized by many clients that rendered the need for his services substantially diminished.  He also claimed that his business had suffered due to the growth of imported bond printed material, as well as the general downturn in the economy. 

Interestingly, the former husband supported his application by submitting the report of an employability expert, who concluded that, while he could learn new skills, changing careers was not a realistic possibility after 27 years in the bookbinding business.  The report further concluded that his best option was to stay in his industry, anticipate a continued decrease in business volume, revenue and earnings, and consult with a career counselor or business consultant to determine available options.

In reversing and remanding the trial court's decision denying the husband's modification motion, the Appellate Division noted that not only had his income decreased, but that the wife's income had "significantly increased" - an undisputed fact set forth in the wife's Case Information Statement that the trial court failed to address.  The Appellate Division also concluded that the trial court failed to make sufficient findings as to whether the husband's decreased earning situation was of a permanent or temporary nature, since a temporary situation is not enough to merit a changed circumstances finding.  Even though the trial court noted that the bookbinding industry had undergone difficult times when the PSA was entered, the judge also noted that the situation was further "complicated" by the downward economy.  As a result, the trial court's denial of the husband's application was reversed and remanded for a plenary hearing.

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In what could be the precursor to a long-awaited battle before the United States Supreme Court, a federal court in California today struck down as unconstitutional the controversial, voter-approved "Proposition 8" law banning same sex marriage.  Analysts of the 136-page opinion have suggested that it is so carefully and thoughtfully drafted that the Highest Court in the Land may find itself up against the wall should it seek to overturn its findings and conclusions in the future. 

The federal court judge found that Prop 8 essentially required discrimination in its implementation on the basis of both sex and sexual orientation with an enforced notion that "gays and lesbians are not as good as heterosexuals."  From a constitutional law standpoint, the law did not live up to even the most lenient "rational basis" test (i.e., the law is not rationally related to a legitimate state intertest) to pass muster under the Constitution's Equal Protection Clause. 

In what can only be described as the sort of monumental rhetoric that will likely be remembered for years to come, the opinion concluded in response to supporters of the law who argued that same-sex marriage violates the fundamental notions of marriage and procreation, "Tradition alone, however, cannot form the rational basis for a law."

Interesting, however, is that the same federal judge immediately stayed his own decision, pending appeals by supporters of the now unconstitutional law.

We will continue to update this blog as details unfold.  For an earlier blog entry on this topic, click here and here.

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In an unreported (non-precedential) decision in the case of Brown v. Brown  released on May 25, 2010, the Appellate Division determined that veterans disability benefits and social security benefits are income for purposes of determining alimony.  In this appeal of an Order that granted some alimony reduction but not as much as the former husband sought, the facts are not particularly interesting.  That said, what was interesting was that the reduction was not as much sought (and in actuality, the ex-husband sought an elimination of alimony, because the court considered the veteran's disability pension and Social Security over his objection.  In fact, he tried to argue that the spendthrift provisions (provisions that prevent creditors from attacking certain assets/benefits) in the relevant federal laws prevent such consideration but the Court noted that a spouse seeking support was not a creditor within the meaning of the law.

The matter was, however, remanded because the trial court did not analyze the statutory factors when reducing the support.  As noted in my blog last week about the Walsh case, when dealing with a motion to modify alimony, once the Court determines ta ht there is a change of circumstances, they have to look at the needs of both parties.  In fact, if the Court makes an initial finding of a change of circumstances, the court must analyze how much the alimony should be in a modification application the same way it would in an initial alimony application.   

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Following up on my recent blog entry talking about the impact of social networking sites such as Facebook and MySpace on the world of divorce, a recent article from the Star Ledger by Sue Epstein (no relation despite our interest in the same topic) discusses how divorcing couples are turning to these websites for evidence to use in their matrimonial proceedings or to simply talk about the divorce itself.  The article states that more than 80% of the nation's top divorce attorneys have seen an increase in cases involving social networking evidence pursuant to a survey by the American Academy of Matrimonial Lawyers, with more than 66% of such evidence found on the ever popular and enduring Facebook. 

Evidence found on these sites may be used for any number of purposes.  Examples cited in the article include using evidence found on a child's Facebook page in a custody proceeding, to locate a person to simply serve them with a divorce complaint, to prove adultery where the party lists themselves in their site profile as "single," or even to prove wealth or ownership of assets when the ability to pay support is in dispute. 

Children all too often are dragged into their parents' divorce disputes, and, not uncommonly, encounter postings by their parents on Facebook and other sites discussing the other spouse, the divorce, and the like.  Oftentimes parties do not realize that not only can potentially hundreds, to thousands of people see the postings, but their children can as well.  The emotional impact of such a finding can be dramatic, in addition to impacting the outcome of a custody dispute. 

As I suggested in my prior posting, posting anything about yourself on these social networking sites essentially makes your life an "open book."  To do so in the context of divorce or custody proceeding, however, may ultimately play a part in determining the outcome of your case.     

EDITOR'S NOTE:  Whether it is Facebook, MySpace, emails or text messages, people often tend to be their own worst enemies in divorce, emboldened to put certain things in writing that they would never say at loud.  Once something is in writing and is either posted on the internet or the "send" button is clicked, it is potentially around forever.  All to often, these items create excellent evidence for various purposes in a divorce.  So if you are going through a divorce, a good idea is to get off of Facebook and/or Myspace, or if you wont, at least be very judicious in what you disclose. Consider not posting pictures of your children especially if that will lead to a battle.  Don't disclose you relationship status and post frequent updates about it.  Carefully read and re-read emails to your spouse, ex-spouse and others to make sure that they are not provocative or can otherwise be used against you.  Think "less is more" or "Joe Friday" ("just the facts.")  The case you save can be your own.  Eric S. Solotoff

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On April 5th, the struggling housing market will face a new ally in the form of a short sale program being aggressively pushed by the Obama Administration to help millions of home owners escape from mortgage debt by selling their homes for less than the balance of the mortgage while receiving an additional monetary payment to do so.  As the government's attempts to assist homeowners struggling to make their mortgage payments have only slightly helped according to a recent article in the New York Times, the new program will pay $1,500 to the short selling homeowners to "relocate."

The benefits of the plan are hoped to be widespread, as lenders will ideally receive more money than with a foreclosure, the borrowers will experience a softer hit to their credit - including the lender's assurance that they will not later be sued for an unpaid mortgage balance - and fewer homes will be empty on the foreclosure market.  To protect from cases of fraud, lenders will utilize real estate agents, who will determine a home's value and, by correlation, the minimum acceptable sale price.  Adding another layer to this new system, the agent's determined value will not even be shared with the home owner, but the lender is required to accept any offer equal to or higher to such value.  What happens when a home owner has multiple mortgages on a single property, however, remains unclear.

From a family law standpoint, this plan provides the sort of good news that divorcing spouses struggling with what to do with their "under water" marital residence are looking for.  Whether it actually fulfills that glimmer of promise, however, remains unclear.  In the down real estate market, how to equitably distribute the home has proven challenging.  Oftentimes, neither party can afford to continue residing in the marital home, refinancing is unavailable due to the negative equity, neither party wants to face the credit hit of a foreclosure, and there is no money to cover the shortfall debt that might result where the house is sold for a price lower than the outstanding mortgage.

Short sales with a guarantee that the lender will not come after the borrowers such as that in the President's plan are therefore a desirable way out.  Short sales generally tend to be a risky, slow moving process with no guarantees.  With the Obama Administration's new plan to boost the housing market, hopefully such situations will take a turn for the better.

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The old adage is that “He who represents himself has a fool for a client.” Family law by nature is an emotional area of the law - custody, alimony, equitable distribution, visitation, child support – these things impact peoples’ lives. As a result, when a party disagrees with the decision by the trial court, they have the right to appeal. When the Appellate Division issues a published decision, that decision becomes binding on all trial courts in the State. Thus, family law is constantly changing and evolving. 

For instance, in a recent unpublished appellate decision, a pro se litigant appealed a post-judgment order relating to alimony and custody. In R.K.B. v. C.W.B., App. Div., decided February 8, 2010, Docket No. A-1613-08T1, a pro se defendant, CWB, appealed from an order that: 1) denied his request for a hearing on custody of the parties' son; 2) found defendant in violation of litigant's rights and ordered him to pay plaintiff the sum of $5,000 due as reimbursement alimony; 3) restrained him from discussing court proceedings with his son; and 4) directed him to pay $1,750 to plaintiff as attorney's fees. The Appellate Division affirmed the trial court decision, finding that the trial judge did not abuse his discretion. In addition, the Appellate Court noted that the defendant failed to present sufficient facts to justify a hearing on child custody.

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The Prevention of Domestic Violence Act, NJSA 2C:25-17 to 35, is the law that governs domestic violence issues in New Jersey, including the issuance of Temporary Restraining Orders (“TROs”) and Final Restraining Orders (“FROs”). The Prevention of Domestic Violence Act was enacted to protect victims of domestic violence. Unfortunately, some individuals abuse the protections offered by the Domestic Violence Act and use it as a weapon in divorce proceedings. While many times the issuance of an FRO is appropriate, there are other times when it is clear that the Prevention of Domestic Violence Act has been abused.     

If a person is a victim of domestic violence, they can obtain a TRO by contacting the local police (at anytime) or going to the county courthouse (during business hours) and explaining the circumstances by which they have been abused. At that time a judge will determine if the facts warrant the issuance of the TRO. If the judge decides that the conduct is sufficient to warrant the TRO, the accused alleged abuser will be served with the TRO, which will order the individual not to contact the victim or anyone else that needs protecting, which may include children, family members, friends, etc. Once the TRO is issued, an FRO hearing is scheduled shortly thereafter.   The FRO hearing is before a Superior Court Judge and will be conducted at the county courthouse. At the FRO hearing, a judge will determine if an FRO is necessary to protect the alleged victim of the domestic violence or if the TRO was incorrectly issued and no FRO is necessary. While the TRO is usually issued ex parte or without any input from the alleged abuser, at the FRO hearing the alleged abuser has the opportunity to testify, call witnesses, present evidence, and most importantly be represented by an attorney.   

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Oftentimes parties will sign an agreement settling all issues in their divorce matter only for one party to subsequently try to back away from those terms for any number of reasons.  Is it just that easy for a party to essentially change its mind?  The simple answer is generally no.  New Jersey has a strong public policy favoring the enforcement of fair and equitable agreements entered into on a consensual and voluntary basis.  If the agreement is somehow the product of fraud, unconscionable or otherwise demonstrates one party's effort to take advantage of the other, then the law provides the wronged party with an opportunity to "set aside" or "vacate" the agreement.  

What about those cases where there is no such wrongdoing?  Since marital settlement agreements are contracts and, as a result, generally enforced, Courts in this State will look to the terms of the agreement and apply basic contractual principles when addressing one party's claim as to the agreement's (or that provision's) enforceability.  For instance, where the agreement's language is unambiguous and the Court is called upon to interpret the terms at issue, the Court will not consider external (or "parol") evidence, such as, perhaps, oral discussions had at the time of the agreement's signing.  It will simply apply and interpret the terms before it.

This was the case in Dell'Osa v. Dell'Osa, a recent, unpublished (not precedential) Appellate Division decision where the husband claimed that the trial court improperly divided the parties' retirement accounts because his accounts were comprised of pre-tax funds while the wife's were comprised of after-tax funds.  The husband claimed that, as a result of this account structure, two Orders (known as Qualified Domestic Relations Orders or "QDROs") were needed to fairly divide the accounts, rather than just the Court dividing the accounts without such an Order to his claimed monetary disadvantage.

Affirming the trial court's decision, the Appellate Division found the settlement agreement language unambiguous as to this issue, finding that the agreement merely acknowledged the pre-tax and after-tax retirement contributions of the parties without requiring any equitable distribution to factor in a tax adjustment.  In its affirmance, the Appellate Division emphasized the notion that "A court may not make a better contract for either party than the one the parties drafted."  The Court also looked to other terms of the agreement in concluding that its interpretation of the unambiguous language was consistent with the terms of the agreement as a whole.

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One would have hoped that Sean Goldman's return to the United States with father David Goldman would have been the end of this years-long international saga.  Sadly, however, that may not be the case.  News reports yesterday indicated that 9-year old Sean's Brazilian family will fight to regain "custody" of Sean, which is interesting since the family's actions and that of the boy's now deceased ex-wife really constituted an international abduction, thus leading to the boy's ultimate Court-Ordered return. 

After the family previously indicated that the fight was over, lawyers for the family will push to have the Brazilian court hear the boy's wishes after all - indicating as much on the same day that the boy returned home to Tinton Falls, New Jersey, claiming that it was "our home" when seeing the house where he will live once again.  Since the Supreme Court in Brazil does not convene until February, it would not be able to hear the family's arguments before then.

How the Brazilian family's ongoing legal actions will impact their likely future claim for visitation is unclear, as even their decision to publicly parade Sean through the streets in Brazil on the way to the United States consulate on Christmas Eve has been roundly criticized and, according to David Goldman, was a traumatic experience for Sean.  The family, however, has substantial financial resources and will likely fight this losing battle, seemingly at the wishes of Sean's maternal grandmother, until there is no avenue untapped.  For an additional prior blog post on this topic regarding Sean's return, click here as well.  Stay tuned for further details.

EDITOR'S NOTE:  We have previously blogged on grandparent visitation on several occasions.  Grandparent visitation is difficult to obtain in New Jersey following the US Supreme Court's decision in Troxel v. Granville and the New Jersey Supreme Court's decision in Moriarty v. Bradt and the cases that followed it.  Given the constitutional protections of the rights of a parent to parent their child(ren) free from interference from third parties, grandparents now must prove actual harm to the child if they do not receive visitation.  While on one hand, the death of a parent (as was the case in Moriarty) would be a factor in the grandmother's visitation request here on one hand, the abduction and the history in this case may mitigate that factor.  Moreover, one wonders whether, despite the harm that may be able to be proved in this case, given the circumstances surrounding the child's alleged bond with the grandmother and step father, that visiitation with these people who were allegedly part of the ordeal that kept father and son apart for several years, would overcome the harm.  ERIC S. SOLOTOFF

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One of the most common questions people ask when settling their divorce matter is, how do we figure out what the child support payment is going to be?  Well, as set forth in one of our recent blog posts found here, Child Support Guidelines in New Jersey control where parties combined net after tax income is less than approximately $185,000.  As also set forth in that prior entry, while a custodial parent cannot bargain away their right to child support and there generally cannot be an agreement to pay less than that set forth in the Guidelines, there may be an enforceable agreement to pay more.  Apparently, an agreement to pay more may hold true even where the number agreed upon was inadvertently higher than required.

In resolving child support, it is critical for the settling parties to set forth in the Marital Settlement Agreement the basis for how child support was reached - such as whether support was calculated pursuant to the Guidelines, as well as attach to the Agreement the Child Support Guidelines worksheet itself.  This will clarify whether the child support number set forth in the Agreement was part of an overall settlement of the parties' parenting and financial issues or, by contrast, a unilateral or mutual mistake of the parties.

The perils of not following these basic steps can be costly, as recently addressed by the Appellate Division in Haskoor v. Haskoor.  There, the parties entered into a Marital Settlement Agreement resolving their custody and financial issues.  A weekly child support amount was included, as well as terms addressing the husband's parenting time.  Less than 2 years after following the divorce, the wife sought to reduce the husband's parenting time while increasing his child support obligation.  In responding, the husband indicated that it was at that time that he first realized that the "sole parenting worksheet" rather than the "shared parenting worksheet" had been used to calculate child support in the settlement agreement, thereby obligating him to pay a higher level of child support.  The husband also argued that the sole parenting worksheet applied used the wrong amount of alimony.   

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Many times I have been asked whether New Jersey has a form of legal separation.  The answer?  The closest form of legal separation is what is known by statute as divorce from "bed and board," also known as a "limited divorce."  In simple terms, it means that two spouses have obtained a divorce from a financial standpoint, but they are still actually, legally married.  Assets are distributed, support is determined.  Notably, both parties must agree and request to a divorce in this form pursuant to the divorce from bed and board statute, N.J.S.A. 2A:34-6. 

The statute even says that the grounds upon which the divorce is based are the same available in a standard divorce situation.  As the parties are still legally married, they can then later reconcile, apply for a revocation or suspension of the Judgment of Divorce or, should no reconciliation occur, either may apply to the court for a conversion of the divorce from bed and board to that of a standard divorce "from the bounds of matrimony."  The conversion application must be granted to the requesting party.   A divorce from bed and board allows each party to acquire property free of the rights that the other party would have if there were no divorce in place.  Similarly, such a divorce prevents a spouse from inheriting the other spouse's property at that spouse's death where there existed no Will.

This type of divorce was recently at issue in Pipitone v. Pipitone, an unreported (not precedential) decision from the Appellate Division holding that the bed and board statute does not mandate that an alimony award, entered into years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order.  Simply put, such an award is prospective only.  The Appellate Division reasoned that, in a situation where one spouse attempts to convert a bed and board divorce into an divorce from the bounds of matrimony or "absolute" divorce, there is an opportunity to revisit the support and distribution terms of the prior property settlement agreement.

While the property acquisition freedom associated with a bed and board divorce may be beneficial to some, many people avoid this antiquated concept and prefer to end the bonds of matrimony with an absolute divorce so that the legal attachment to the other that remains with a bed and board divorce no longer exists.

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