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

Earlier this year, we blogged about  of our colleague, Aaron Weems' post on our firm's Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)....

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron's prior post regarding the de novo review:

Isn't that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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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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Child support in New Jersey for parties with combined net (after tax) income of less than $187,200 per year ($3,600 per week), are supposed to be determined based upon the Child Support Guidelines.  The Guidelines are based upon economic data of what it costs to raise a child.

 That economic data has been reviewed and, as a result, there are proposed changes to the child support guidelines that may actually see the figures going down, especially for multiple children. The Supreme Court has published the proposed changes on the Court's website.

As noted in the New Jersey Law Journal, the state Supreme Court's Family Practice Committee is recommending rule revisions that would allow child-support determinations to be based on a broader and more accurate picture of family spending. Specifically, the committee urges adoption of a new award schedule that "for the first time captures spending in families over a twelve year period," from 2000 through 2011, which "encompasses prosperous years, recession years and the current slow recovery years."

For sake of reference, at the highest level, the weekly amount of child support to be apportioned between both parents based upon their percentage shares of net income is follows:

No. of Children            1          2          3              4          5          6         

Current                         $453    $606    $658    $733    $806    $877

Proposed                     $571    $589    $731    $803    $884    $973

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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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There has been an alimony reform movement that has been gaining traction throughout the country.  Some of the major concerns appear to be this issue of permanent alimony and the lack of uniformity in alimony awards, both in amount and duration, from case to case.  In the recent past, alimony laws have been reformed in Florida, Massachusetts and Maryland.  Is New Jersey next?

On March 7, 2013, A3909 was introduced in the New Jersey Assembly, which, if passed, would radically change alimony as we know it in New Jersey. 

The following are a highlight of the changes:

• All references to permanent alimony are deleted from the statute, though, as noted below, for marriages of more than 20 years, an indefinite award of alimony can be be granted

• The concept of imputing income to someone that is unemployed or underemployed, which already exists in the case law and child support guidelines, would be codified

 

• The amount of limited duration alimony should not exceed the recipient's need or 30 to 35 percent in the difference between the parties gross incomes at the time of the initial award, though a court would have the discretion to deviate.  Some reasons for deviation would be advanced age, chronic illness, unusual health circumstances, whether the payer is providing or ordered to provide health insurance to the recipient, sources and amounts of unearned income not allocated in equitable distribution, the recipient's inability to become self-supporting based upon the abuse of the payer, and others, including a catch all "any other factors that a court deems relevant and material."

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Yesterday's New York Daily News published an article indicating that 28% of wives out-earn their husbands according to an analysis of Census Bureau data by USA Today.  The article goes on to state that, despite these advances, women still lag men in the highest levels of their chosen fields

Given the reality of many women earning more than their husbands, the logical corollary is that many more women will have to pay alimony to their husbands.  Makes sense right?  As we know, the New Jersey alimony statute is gender neutral as is the case law that interprets the statute.

But how does the woman, who for the first time hears that she may have to pay alimony react to that news and how does a man's request for alimony play in the court of public opinion?  Usually, not well.  Despite the desire for gender equality and the law being gender neutral, many people still believe in the notion that only women get custody and only women get alimony.  In fact, some of my most difficult cases have been cases where the husband has made a claim for alimony.  These cases were not close calls either.  These were cases where if the parties were reversed, it was a no-brainer, slam dunk, unquestionable alimony case.   This even happens in cases where the husband was a stay at home parent. 

A frequent refrain heard in these cases, usually by the wife who doesn't want to pay or her family and friends is "what kind of man seeks alimony."  Do you ever hear similar insults when a woman is seeking alimony?  I haven't.

This news story highlights that as women continue to out earn their husband's and traditional gender roles become old news, that more and more women will be called upon to pay alimony, barbs aside.

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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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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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All over yesterday's news, including the Dallas Morning New, were reports that Deion Sanders won his custody trial.  As reported, Deion received sole custody of his two sons with his wife, Pilar.  The parties also were awarded shared custody of their daughter.  In English, Deion will make all educational, health and extracurricular decisions for his two sons, ages 11 and 13, and the parties will share that responsibility for their 9-year-old daughter

As these things tend to be, this was a nasty custody fight, with Pilar making allegations of abuse and Deion alleging that this was all about the money. 

For a New Jersey divorce attorney, what is also interesting about this case is that it was decided by a jury of 7 women and 5 men.  The concept of a jury deciding custody, or for that matter, any family law issue other than perhaps (but not always) a marital tort, is completely foreign in New Jersey and most jurisdictions.  In fact, other than perhaps Georgia, I am unaware of any other jurisdiction where there are jury trials for custody.  New York used to have jury trials to decide a contested divorce - i.e. whether the fault cause of action had been proven.  I suspect that this too is largely a thing of the past since no-fault divorce was recently enacted in New York, as previously noted on this blog.

In New Jersey, typically custody decisions take weeks if not months to get a decision from a judge.  In the Sanders case, the jury deliberated for less than two hours.  In New Jersey, the decision is determined less by the he said/she said, mud slinging, and more upon the testimony of one or more custody experts.  Moreover, as noted in my blog post last week entitled Custody - Back to Basics, the decision must consider the 14 factors set forth in the custody statute.

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All too often one spouse will pressure the other to settle an ongoing case, using finances, custody, or some other issue to force an inequitable end to a matter.  This comes up all the time, yet the pressured spouse frequently doesn't realize that it is happening, whether it is because she trusts her soon to be ex-spouse, is scared (or simply does not want) to litigate to obtain what is fair and reasonable, or for a variety of other reasons.

So what type of comments/efforts will one spouse make to pressure the other spouse into a settlement?  For the sake of brevity, I provide a list of ten fan favorites below, although the list could likely go on and on without end.  

1.  You are going to have to start cutting back on your (not his) lifestyle expenses or else we are not going to be able to afford to litigate this matter.  While in some cases this may be a true statement, I find this one particularly obvious and offensive in cases where there is more than enough income and assets to litigate and maintain the marital lifestyle for both parties.  

2.  You are going to cause us to go to trial (alternatively, "my lawyer told me that I am right, so I would rather go to trial than give you what you want").

3.  Do you really want to drag the kids into the middle of a (legitimate) custody dispute?

4.  I will give you what you want on custody and parenting time so long as you give me what I want financially.  This example is particularly common, but the issues should not be intertwined.

5.  Your lawyer is preventing us from settling (alternatively, "I want to try to work this out with you privately and impose my terms without your lawyer getting in the way").

6.  My income this year is not going to be what it once was, so we really cannot afford to litigate this matter.  (see also prior blog posts on Rapidly Acquired Income Deficiency Syndrome "RAIDS")

7.  I would rather pay my lawyer than pay you.  This classic line really has no bearing on the outcome of a support or equitable distribution issue, and, in fact, provides a compelling argument by the supported spouse for counsel fees due to the payor spouse's unreasonable conduct.

8.  The act (or repeated act) of violating an interim support ("pendente lite") Order requiring payment for various expenses.  This form of non-compliance forces the supported spouse to determine whether she wants to continually file costly motion after costly motion to address the payor spouse's non-compliance, or simply give in and surrender in the matter.

9.  Threatening the supported spouse that if she does not agree to go to mediation, she will "regret it".

10.  Any type of what is commonly known as "Divorce planning", ranging from ensuring a reduction in income (see #8, above), spending down assets, hiding assets, or engaging in any course of wrongdoing geared towards the divorce matter.

The possibilities are really endless, so it is important that you keep an eye out and understand that each of the above examples may (and I say "may" because some of the above claims may be truthful and legitimate) be designed to do nothing more than pressure you into an inequitable settlement that you may regret having to live with when you wake up the morning after that final judgment of divorce is entered by the Court.

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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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How many prenuptial agreements have language in them that the parties are entering into the agreement free from duress, coercion, undue influence, etc?  The answer is all of them.  Some even ask people to waive fraud - how you can do that I don't know because if you knew you were being defrauded, you probably wouldn't enter into the agreement.  How many times is the agreement presented at the last minute, after the bride to be's parents are out tens of thousands of dollars for the wedding?  How many times does the person presenting the agreement say "Don't worry about it, it doesn't mean anything", "don't worry about it, I'll give you more" or "don't worry about it, I'll rip it up in 5 years or after we have kids, etc?" 

This probably happens all to often or at least, more often then we want to believe.  In most cases, since you have said you have entered into the agreement free from duress, etc., you will have a hard time getting out of the agreement at the time of divorce.

But alas, comes the Petraikis case out of New York discussed in yesterday's New York Post.  In this case, Elizabeth argued that Peter coerced her signature, threatening to call off the wedding even though her father had already paid $40,000 for the reception.  She also claimed that he told her that he would rip up the agreement as soon as they had children.  The trial court set aside the prenup on the basis that Peter fraudulently induced Elizabeth to sign it.  The Appellate Court upheld this decision.

In New York, prenups are usually particularly hard to overturn so many deem this to be a landmark decision.  The take away here is that despite the recitations in the agreement, the door is open to try to prove contrary behavior and/or that there were additional promises outside of the agreement.  One wonders whether a video taped signing with the usual questions that the agreement was voluntarily being entered into would have saved the agreement.  That said, for the proponent of the agreement, you need to be really careful about what you say to induce the other side to sign an agreement and what pressure is put on to get an agreement signed.

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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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We have done dozens of posts on this blog about alimony over the last 5 years.  Recent experiences have convinced me that it is time to get basics. Despite all of the cases that say that you can't use a formula (the rule of thumb we have discussed previously on this blog), more and more, people are espousing a blind adherence to the rule of thumb.  In one recent case with income of a few hundred thousand, an adversary told me that it was the maximum amount of alimony that I can get, despite the fact that it came no where close to meeting my client's already pared down budget.  In another case, where the income was a few million, one side was arguing that the rule of thumb was a minimum, as if there should be no consideration of any other factors.

Despite the calls for alimony reform and formulas, as we have said many times, courts deciding cases cannot use rules of thumb.  Even when they do, they can't tell you that they did.  Rather, they have to review the alimony factors set forth in the statute - remember them?  Here, they are again, from N.J.S.A. 2A:34-23(b):

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant.

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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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Early in case where children are involved, we discuss the different types of custody.  There is residential custody - i.e. who the children live with and the resulting parenting time for the other parent. Then there is legal custody which is decision making regarding issues of the health, education, religion and general welfare of the kids.  in 99% of the cases, the parties will share joint legal custody - it is usually a no brainer.  in fact, In the New Jersey Supreme Court’s seminal decision of Beck v. Beck, 86 N.J. 480, 497-501 (1981), the Court stated as follows with regard to whether joint custody should be awarded:

At a minimum both parents must be ‘fit’ that is, physically and psychologically capable of fulfilling the role of parent.

That said, the minimum requirement of joint legal custody is the ability to communicate and cooperate on some basic level as it relates to the best interests of the children.  The Court in Beck further noted:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

Again, in Beck, the Supreme Court of New Jersey has written:

The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Beck v. Beck, 480, 498 (1981).

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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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In the newly published decision of Benjamin v. Benjamin out of the Ocean County Family Part, which has released several reported decisions within the past few years, the court held that having a guaranteed job in another state is not a mandatory prerequisite for it to approve a custodial parent's request to relocate to another state with a child born.  The court did hold, however, that the "likelihood that the custodial parent can provide the child with a financially stable household in the new state, including obtaining employment as necessary is relevant in determining whether a proposed relocation is reasonable or inimical to a child's interests."

On first blush, the court's statement that the primary residential custodian has the right to seek relocation almost suggests that such a right is automatic.  A closer read of the decision and its ultimate holding, however, indicates that the standard fits within the existing relocation standard. 

The parties were divorced in 2008 and agreed in a settlement agreement that mom would be the child's primary residential custodian.  In 2012, mom filed an application to relocate with the child to North Carolina, which dad objected to by filing a cross motion seeking a transfer to him of residential custody.  One of dad's arguments was that mom did not have a job in North Carolina, which would inure to the child's financial detriment.

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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 "Trial Court Must Conduct De Novo Hearings on Parent Coordination Appeals."  As Aaron notes:

 A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

Isn't that was it supposed to happen in NJ?  Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review.  That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator.  All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened. 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered.  On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

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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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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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I sit here stewing on this overcast Friday because the other side reneged on the settlement in two matters, after we believed we were all but resolved in both.  Whether or not these were enforceable settlements is a topic for another blog.  That said, one is particularly frustrating because the other side essentially undid a package proposed by them a few mediation sessions ago which been discussed at a few mediation sessions, only to come back with a new proposal that was accepted by my client. 

The problem is that no one ever just says "my client changed his/her mind."  This would be a fine answer especially in situations where we have laid the ground rule that there is no deal until it is signed of by everyone.  Rather than truth, we get hit with lame, absurd, and/or intellectually dishonest explanations as to why there never was a deal in the first place, and/or why the back tracking (a nice way to say bad faith negotiations) was justified.

What are some of the "dog ate my homework" excuses we have heard.

• My client didn't really understand (Were you, the attorney not there?)"
• the mediation session was chaotic and ended abruptly (note - no denial that there was a deal)
• my client didn't believe that any agreements were reached that date (of course, the lawyer isn't saying that there were no agreements reached)
• "Oh, is that what we agreed to"
• My client never agreed to that
• We may be close on the big stuff (how is that when we accepted your offer on the "big stuff")
• My client was very emotional
• My client was hungry
• My client didn't take their medication or took too much medication

I am sure that my colleagues could add dozens more.  That said, if a non-binding settlement is reached, wouldn't it be just better to tell the truth - i.e. my client changed her mind - then create anger and bad feelings spewing nonsense to cover for the acceptable truth?  I'm just sayin ...

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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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We don't typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights - that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I'm talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn't like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother's custody with her own child hinged upon this report, the prejudice cannot be quantified.

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On the heels of our New Years Resolution Divorce post, I thought it made sense to also resurrect our prior posts on preparing for the divorce process and how to select a divorce attorney. 

Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer. We also previously posted South Carolina matrimonial attorney, Mellisa Brown's article entitled "How to Find the Right Divorce Attorney for You."

The process, however, starts even before that. On our web site, we have an advice piece entitled Preparing for the Divorce Process.

Since it is linked to this post, I will not repeat everything contained in the piece. However, the topics contained in that piece are as follows:

• Speak to an attorney now, not later
• Selecting the right attorney (including how to get referrals for an attorney)
• Gathering documentation
• Preparing for the initial meeting
• Telling the truth
• Keeping a diary; and
• Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times. Divorce can be a long, highly charged, expensive process - emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children's interests.

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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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Back in 2009, we blogged about the possible inclusion of Parental Alienation Syndrome in the long awaited next version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). 

In that post, I discussed a US News and World Report article that addressed a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.

However, as expected for some time, the American Psychiatric Association board of trustees has recently approved the DSM 5 which has will be released in May 2013 and it has been confirmed that Parental Alienation Syndrome will not be included in the DSM V.

I am sure that this is both a defeat to some and a happy time for others. As I noted back then, while there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness. On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.  That said, because it will not be in the DSM, the debate over the issue shall rage on.  Moreover, without a diagnostic code, it will be difficult to get insurance companies, where coverage for mental health issues is often challenging, to pay for treatment related to parental alienation.
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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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Nearly everyone who has a judge rule against them thinks that the judge got it wrong.  Why litigate if you didn't think you were right?  Judges are human and some times they actually do get it wrong.  In those cases it is easy to get their decisions reversed, right?  After all, that's why we have a Appellate Division, right?

Right and wrong.  That is why we have an Appellate Division.  That said, given the standards of review in family court matters (and in all appellate matters in general), if you were betting, you should bet on the house because more cases are affirmed then reversed.  Other cases are remanded, not necessarily because the judge got it wrong, but because she/he did not provide sufficient fact finding in the decision to allow for appellate review.

I have rarely seen the standards of review set forth so cogently then in the unreported (non-precedential) case of Schleiffer v. Schleiffer released on December 6, 2012, citing the recent reported case of Milne v. Goldenberg (previously discussed on this blog).

The standards on appeal, we noted was follows:

In Milne v. Goldenberg, 428 N.J. Super. 184, 197-98 (App. Div. 2012) we recently restated our commitment to the principle that the work of the Family Part will not be disturbed absent compelling circumstances:

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Yesterday, Judge Grant, the Acting Administrative Director of the Courts, announced that effective November 26, 2012, the Parenting Coordinator Pilot Program would be ending. The notice further provides that judges may still appoint parenting coordinators (PCs) and even provides model, but not mandatory, Orders for the their appointment. 

To those who oppose the use parenting coordinators, they may see this announcement as a victory of sorts.  However, I would not start jumping for joy, right away.  The good thing about the pilot program is that there were at least published guidelines approved by the New Jersey Supreme Court that could be followed.  In fact, as I wrote on this blog in September of this year we learned from the Milne v. Goldenberg reported decision that even in non-pilot program counties, if a PC was appointed, the Pilot Program guidelines had to be followed.  Query how this provision of the Milne case jibes with the above announcement but only time will tell.

If the Guidelines don't apply, are we going to return to a wild west environment like we had before the Guidelines?  In fact, I blogged about the pre-Guidelines madness all the way back in 2008.  As I noted then, over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters. Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc. The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

The problem was that there was no uniformity to what this person, whatever they were called, could do.  Even Pre-Milne but post-Guidelines, I had cases where parent coordinators in non-Pilot Program counties were vested with incredible powers bordering on, if not crossing the line of the abdication of judicial authority, which is not supposed to happen.

Only time will tell whether the role of parent coordinator will go the way of the dinosaurs or go back to the free for all that existed pre-Guidelines.  Until then, we watch and hope that the dissolution of the Guidelines will not make things worse, instead of better.

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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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In our effort to provide the reader of this blog all of the serious (ahem) family law news we can find, a top source for family law news, the New York Daily news provided some fodder for this blog this weekend.  While I suspect some of you are waiting for us to discuss the Justin Bieber and Selena Gomez break-up, the story at issue is not that one, but the one involving a woman in England who divorced her husband because he wouldn't play Fifty Shades of Grey.

In this case, it was reported that the woman, a successful banker earning $600,000 per year alleged that her attempt to jump start their love life with author E.L. James’s provocative novel backfired when her husband accused her of “unreasonable behavior.”  The husband allegedly blamed the breakdown of their marriage on that book.

Whether or not this book is causing similar marital distress, or perhaps the opposite, in New Jersey is unknown.  Since most divorce Complaints in New Jersey are filed citing irreconcilable differences, a no-fault ground, we don't hear the same level of the detail regarding why a couple is divorcing.  This was not the case 7-8 years ago and before, when irreconcilable differences was not available and most cases proceeded on the fault ground of "extreme cruelty."  Back in those days, parties had to allegedly prove the reasons why the conduct of the other made it unreasonable and improper to require them to continue to live together as husband and wife.  Now courts really did not care what was really in the Complaint and the only testimony at a final hearing was testimony that the allegations in the Complaint were true.  That said, depending on how angry people were, you could get a few short paragraphs, or you could get an Encyclopedia Britannica of allegations. 

Since it was largely irrelevant, only served to raise and more costly and time consuming than an irreconcilable differences Complaint, the system is better for us not having to file cruelty complaints in most cases (we may still file them if custody is an issue and/or there is a tort claim being filed too).  That said, from a lawyer's perspective, the cruelty complaints and counterclaims often afforded you, early on, to learn the true dynamic of the relationship in a way that better enabled you to strategize and otherwise help your client. Still and all, divorcing your spouse for not acting out what is in a book is a new one for me.

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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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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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Robert A. Epstein, an associate in our Family Law Group resident in the Roseland, New Jersey office, authored the article, Imputing Income to a Non-Working Spouse During the Pendente Lite Period: A Violation of the Status Quo or a Practical Step Toward the Reasonably Comparable Lifestyle?, for the November 2012 edition of The New Jersey Family Lawyer. The article highlights the fact that the outcome of pendente lite support determinations in divorce proceedings can have a long-lasting impact on the court’s view of the case, the tenor of an ongoing matter, and the prospects of settlement.

Additionally, Lauren E. Koster, an associate in our Family Law Group resident in the Princeton, New Jersey office, co-authored the article,Navigating a Partnership K-1: The Untold Line Items and What They Really Mean, also for the November 2012 edition of The New Jersey Family Lawyer. Koster, and her co-author, Leonard M. Friedman, CPA/ABV CBA, Partner at Rosenberg Rich Baker Berman & Company in Somerset, New Jersey, argue that while a K-1 provides valuable insight about a particular business and how much a person may, in fact, be truly earning, it should also be noted that navigating your way through a K-1 can be a daunting task for those family law practitioners who are not familiar with the document.

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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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When settling a case, the parties and their lawyers can be far more creative in settlement then a judge can be if the case is tried.  While family judges have wide discretion in their decision making, creativity is crafting the most beneficial result for both parties is rarely something they can do.  In fact, in many ways, they are constrained from the type of creativity that we see every day in divorce agreements. 

What if you are a high earner, but your income fluctuates greatly from year to year?  While a judge will likely have no choice but to determine your average income over 3 to 5 years and base support upon that as well as the rest of the statutory factors, you may want to agree on some kind of formula so that there is fairness year over year, i.e. you pay more in a better year and less in a down year. For example, if your average income is $2,500,000 but your income fluctuates between $1 million and $4 million per year.  You would really hate paying alimony in those years you only make $1 million.  If a judge decided this case using averages, you might be forced to pay your entire net income, or more, to you ex spouse in the down year.  Similarly, a judge could never say that support "automatically" is reduced or even reviewed if your income is less than $X in the future. 

This concept was reiterated again by the Appellate Division on October 29, 2012 in an unreported  (non-precedential) decision in the case of Means v. Snipes.  In this case, after a trial, the judge decided that in the event that defendant's annual income fell below $2 million, he would receive a reduction in alimony. This is the one thing that both parties agreed was in error - a rare agreement in a very contentious case.

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Is prenuptial agreement reform coming to New Jersey? It appears to be the case.

Prenuptial Agreements are meant to fix parties rights and responsibilities in advance, so as to avoid litigation and aggravation in the future.  In fact, right up front in many if not most prenuptial agreements there is a "Statement of Intention" as follows:

It is the intention of the parties in entering into this Agreement that in the event of the termination of the marriage by divorce or death, certain rights shall be fixed in advance. It is their intention to avoid litigation and intrusion into their professional and personal lives and the lives of their families and business associates, which would perhaps otherwise occur if this Agreement had not been entered into.

Unfortunately, unlike in many other states, where prenuptial agreements are ironclad as long as there was full disclosure and the other procedural requirements are met, that has not been the case in New Jersey.  The major reason for this is that in New Jersey, aside from setting aside a prenup due to failure to follow the procedural requirements, including full disclosure, agreements can be set aside if they are deemed to be unconscionable, not only when they are entered into, but when they are to be enforced at the time of the divorce.  As a result, I have heard judges say that they have never enforced a prenuptial agreement.  I have heard other judges give the rationale that because you don't know what is going to happen in the future, it is unfair to enforce the agreement against a spouse where she/he waives alimony or the equitable distribution rights.  That rationale misses the point as that is the entire reason for a prenuptial agreement.

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It seems to make sense that when parties who are business together get divorced, one party has to go.  The theory of "this town isn't big enough for the both of us" comes to mind.  In fact, as far back as 1978, the courts of New Jersey recognized this seemingly common sense fact in a case called Borodinsky.  In that case, the Court held:

It seems almost doctrinal that the elimination of the source of strife and friction is to be sought by the judge in devising the scheme of distribution, and the financial affairs of the parties should be separated as far as possible. If the parties cannot get along as husband and wife, it is not likely they will get along as business partners ...

There is no restriction on the court with regard to ordering distribution in kind of the eligible assets or awarding a monetary equivalent thereof. But, nonetheless, the judge should consider the former relationship of the parties and the fact that post-divorce peace is more conducive to the welfare of the parties.

But what if you agree to stay in business with your former spouse after the divorce?  What happens when things go bad?  Can you simply force a dissolution or buy out?

This was the issue in the case of Moriello v. Moriello, an unreported (non-precedential) case decided by the Appellate Division on July 17, 2012.

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While it doesn't happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert.  This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose.  The general rule seemingly had been that these sessions can be taped (with notice - not surreptitiously).  Why do people want to do this?  Some people are not trusting.  Others want to make sure that they are not misquoted in an experts report.  Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too.  In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped.  Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation.  Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert.  Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.

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Parties often like - well no one really likes to pay alimony - to use alimony as a vehicle to settle issues in a case because usually, alimony is deductible to the payor and includible in the income of the recipient.  Because of differences in tax brackets, proper structuring of alimony can create additional cash flow for the recipient and additional tax relief for the payor. 

There are times, however, when alimony is paid in a lump sum. Sometimes an alimony obligation is bought out - prepaid if you will (though for the payor, one wonders whether this is a good deal because the recipient can go out and get married the very next day whereas alimony terminates upon remarriage typically (as well as death).  Other times, people make a business decision to front load some of the alimony so that the monthly payments in the future are reduced.

However, lump sum alimony cannot be deducted nor is it includible in income.  Because of this, consideration should be given to what the lump sum should be by perhaps tax effecting the number so that the recipient does not get the full amount, up front, without having to pay taxes on it.

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Fox Rothschild's New Jersey Family Law Legal Blog welcomes Kelly Sutliff, MA, LPC, NCC, a licensed professional counselor with Kelly Sutliff, LPC, located in Madison, New Jersey, as a guest blogger.

Having known Kelly for over ten (10) years and speaking at length with her about the trauma that many children suffer through as a result of divorce, I thought it would be helpful for readers to hear about the mental and emotional impact of this process from a mental health professional. Below is an excerpt from a piece written by Kelly to better help parents going through a divorce understand the impact on their child.

"It's my fault". "My parents don't love me anymore". "I lost my family". "I'll never see my mom/dad again". These heartbreaking comments are commonly mentioned by children affected by divorce. Although these comments may be unrealistic, the sense of loss a child may feel as a result of his or her parents' divorce can be overwhelming and devastating. It is important for parents to help their children to cope with the divorce as well as to seek outside professional help, if needed.

Divorce can be an emotionally traumatic experience that can have an impact on a child's feelings of safety, security, and stability. Frequently, the stress children feel as a result of their parents' divorce relates to the family structure changing. Children fear change and the amount of changes that follow a divorce can be overwhelming and frightening. Many children also feel a loss of attachment to one or both of their parents after a divorce. Changes in scheduling and how often they see a certain parent can cause a certain amount of distress. The fear of being abandoned is also a fear that many children of divorced families face. Often, they feel that because one parent has moved out of the "family home", they are likely to lose the other parent at some point as well. They may blame themselves, feel unloved, and worry that they are the cause of their parents' relationship ending. Another factor that can lead to children's feelings of stress is hostility and fighting between parents. Arguments and tension between parents may make children feel angry, guilty, and alone. Some children feel "put in the middle" of their parents' arguments and believe that they are being asked to choose sides. The internal struggle that these children face when feeling this way can have profound negative effects on their behavior.

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While decisions from the Appellate Division addressing a former professional athlete's motion to reduce his support obligations do not come around all that often, we have, in fact, previously blogged on the issue.  Now from the Appellate Division comes the unpublished (not precedential) matter of Villone v. Villone, where the Appellate Division strictly relied on "triggering" language in the parties' Marital Settlement Agreement in reversing and remanding a trial court's decision that a former Major League Baseball pitcher was not entitled to a modification of support. 

The matter involved that of former pitcher Ron Villone, who has played for more franchises than almost anyone else in the history of the game (an interesting record that was recently broken) - 12 to be exact as of Spring Training 2011, when he was released by the Washington Nationals and signed with the Somerset Patriots (an independent, minor league baseball club).  He became well known for his travels, earning the nickname "Suitcase" Villone from teammates.  Also interesting is that his current wife is on the reality show "Baseball Wives", which, in the context of asking for a support reduction could provide potential evidence for his former spouse to use against him in opposing such request at the trial level.

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Having just experienced several months of "interesting", to say the least, negotiations on several matters, it got me thinking about creating a list of things to do if you really don't want to settle your case.  Hey, every body is entitled to their day in court if they want it. So what if there is nothing that can be gained from it.  So what if you can't win.  So what if forcing the matter to trial will create other legal issues.  So what if trial will cost tens of thousand of dollars.  Here is the list:

10.  Ignore your expert's advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know? 

9.  Ignore your lawyer's advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don't believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn't make sense.  Plus, how can they prove if you're lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no "horse in the race" are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn't apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse's attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse's lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children's best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim "Pigs get fat, hogs get slaughtered."  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don't worry that this conduct may set your case back.

The above is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

_________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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, 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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Right before the Thanksgiving holiday the NJ Appellate Court came out with an unpublished decision yet again reminding trial courts when permanent alimony should be permanent and not something else.  While there is no bright line, black and white rule written about the magic number of years that would entitle a spouse to permanent alimony, there are certainly some general facts that assist attorneys and judges alike in determining when a case is appropriate for permanent alimony.  This decision reminds us of those.

In the matter of Happold v. Happold, A-2792-10T1, decided November 21, 2011, the Appellate Court reversed and remanded (to a new judge in the trial court) a decision, which awarded the Wife 10 years of limited duration alimony instead of permanent alimony.  The relevant facts are as follows:

1. The parties were married for 21 years at the time the Complaint for Divorce was filed.

2. The parties were ages 42 and 43 at the time of the Complaint.

3. Three children were born of the marriage, one was emancipated before the trial.

4. The Wife became pregnant with the parties' first child at the age of 16, when she was in the 10th grade.  Husband was in 11th grade at the time.  Wife dropped out of high school only completing a 9th grade level of education.  Husband continued in school and graduated.

5. One year after their first child's birth, Wife moved into Husband's parents' home with Husband.  Wife never worked outside the home during this time.  Husband completed high school and began working.

6. The parties' two other children were born in 1993 and 1995.  While Husband worked outside the home and his career continually advanced, Wife remained at home as the sole caretaker for the children and the home.

7. During the marriage, Husband controlled the parties' finances except for a jointly held savings account intended to give Wife immediate access to money if Husband died.

8. At the time of the trial and during the last year of the marriage, Husband's income was $238,500 and $215,000 respectively.

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A few years ago, during a conference with a reasonably new judge used the term "off the shelf parenting plan" to describe what he assumed a normal parenting time plan should be.  This plan was alternate weekends, Friday to Sunday night, and one night per week for dinner.  While my client was happy, because she did not want her husband to have more parenting time, with all due respect to the judge who became a very good family court judge just in time to be rotated to another division, was he right?

If this was the 1970s, 1980s or before, perhaps he would be right - or at least that was the prevalent parenting plan at the time.  However, parenting roles, societal norms and more importantly, psychological and social science research have come a long way since then.  Time and again, you no read and hear that, in most cases, children benefit from as much time as possible with both parents.  This does not necessarily mean an equal schedule and also must be adjusted for the ages of the child(ren).  For instance, a proper parenting plan for an infant or toddler, is different than for an older child.  In fact, for infants, there is a lot of research suggesting that overnights are not appropriate, but that more frequent visits are appropriate.  Much of the literature breaks things up as follows:  birth to 2 years; 2 to 3 years; 3 to 5 years; 6 to 9 years; 10 to 12 years; and teenagers.

What is clear, however, if a non-custodial parent wants substantial overnights with their children, assuming that that the kids are over 5, more likely than not, an custody expert will more likely recommend some type of shared parenting schedule, including perhaps true, shared 50-50 parenting. What do I mean by shared parenting? Between 5 and 7 out of 14 overnights. 

As such, if one party is trying to restrict parenting time, I will often suggest that my client seek a custody expert (joint or their own expert) because of the likelihood that absent some problem (psychological issues, abuse issues, substance issues) or logistical issues (the parties live too far apart to make shared parenting work), most experts usually recommend some type of shared parenting because that is what the research suggests is in a child's best interests. 

Are experts making this recommendations only for super involved parents?  Not necessarily, though the more involved the parent has been, the more likely that they can get a 50-50 plan or 6 out of 14 overnights.  Because sometimes judges (as well as mediators and arbitrators) are not always aware of the current developments in the research, the attorney for the party seeking more time has to educate the judge, mediator or arbitrator.  Sometimes that means getting an expert.  Other times, especially if during a motion early in a case, it may mean filing a brief citing and attaching the articles.

The take away here is that it is rare that a parent has to settle for alternate weekends and one night for dinner if they seek more parenting time. 

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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, 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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A few weeks ago, I posted a piece on this blog about the business valuation concept known as reasonable or replacement compensation.  After that post, I received an email from a well known business valuation expert, Sam Rosenfarb of Rosenfarb LLC, with an attachment containing an article that he wrote regarding the issue of the change of value of a business after the date of Complaint for Divorce.  That article along with the ever growing backlog in the family courts created by the budget crisis and other factors got me thinking more about this topic. In some counties, it may be more than three years to get a trial date at this time.

Why is this important?  In New Jersey, passive assets (e.g. real estate, bank accounts) are typically valued as of the date of distribution.  On the other hand, active assets, such as a business, where the value could be tied to the efforts of the business owner, are typically valued as of the date of the divorce Complaint.  As such, in your typical case, the increase or decrease in value post-complaint is not considered though there is an ability to raise the issue in extreme circumstances.

This issue was relevant in a case that both Sam and my prior firms were involved in where it took nearly a decade for the case to get to trial and where the business increased in value substantially over that time.  That case started before New Jersey implemented "Best Practices" wherein, systemically, the goal was to get all cases resolved in a year.  Even cases that were more complicated and which had business valuation issues, could usually get a trial date within 18 months.  As such, the days of the 4 year, 5 year or longer case, where changes in value would likely occur, became less the norm as they had been before "Best Practices."

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I read an interesting article on The Wall Street Journal.com about the ever growing use of a a child's battle with obesity as a tool for leverage in custody battles to prove one parent is unfit and therefore, should not have custody or should have a reduction in parenting time.

In some cases, parents are blaming a grossly overweight child on the other parent.  In others, it is the use of a child's diet (too much soda, fast food, potato chips) as evidence of bad parenting.  There are also those cases where one parent uses the obesity of the other parent to argue that he or she is simply physically unable to care for the children.

According to a sample of family lawyers from across the country, arguments like the ones above are being heard and utilized more frequently in family courtrooms.  For judges in New Jersey, and many other states, the standard when deciding these issues is what is in the best interest of the child.  The state of Pennsylvania recently altered its definition of best interest to include the physical and emotional well-being of a child.

The article goes on to tell us that "according to the Centers for Disease Control and Prevention, approximately 17%, or about 12.5 million, of the nation's children and teens are obese. Since 1980, according to CDC statistics, obesity rates have nearly tripled."  The statistics are staggering.

Social scientists, legal experts and law professors agree that the rising statistic of both childhood and adult obesity will lead to continuing changes in the law, particularly as the law relates to custody and parenting time.  Thus far in New Jersey, no specific factor of weight or nutrition has been added to our best interest of a child definition/standard.  While there is no doubt that practitioners across the state have likely dealt with the issue in at least one facet, there is no published law which directly addresses these issues.  That said, the article raises an interesting perspective on how a child and/or a parent's weight and dietary habits may be considered in contested custody matters. 

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Trials in divorce matters are kind of like the Loch Ness monster - lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court's have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don't, what is supposed to happen.
 

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Yesterday, I blogged about the constitutional protections given to parents when in a custody dispute with a grandparent, including whether a psychological parent receives the same protections that a biological parent receives in such disputes (the answer is no - but you knew that because you read yesterday's post.)

A related topic is what is the standard to apply when a biological parent is in a custody dispute with a third party.  On the same day that the Appellate Division decided the case I blogged about yesterday, they also decided the case of Schwear v. Prigge and Schwear though that case is unreported (non-precedential). This case involved a custody dispute between a natural mother and her child's paternal uncle.  I will spare you the tortured history of the case and focus on what the law is. 

Custody disputes between a natural parent and a third party are governed by Watkins v. Nelson, 163 N.J. 235 (2000).  As the Court in Schwear noted:

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent's "fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and is "rooted in the right to privacy." ... The parent's right to custody is not absolute, however.The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child[.]" 

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances."
If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. (Citations omitted).

The rights of a parent have constitutional implications.  As such, whenever they might be abridged, there is a heightened scrutiny that much be applied.

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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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Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the "war of attrition" will force the other party to give them what they want to avoid further motion practice.  We as family practitioners know that while the Rules of Court provide a party with the ability to seek a counsel fee award from the other party for a variety of reasons including, but not limited to, "evening the financial playing field," assisting a party in need where the other party has the ability to pay, or, commonly, addressing the other party's unreasonable behavior, courts do not always award fees even in what may seem like an obvious situation to do so. 

For example, a party bringing a motion to enforce litigant's rights may not receive an award of fees even if they tried to settle to no avail before filing the motion, especially where the other party "remedies" the issues before the Court actually decides the motion.  Of course, the motion would not have been filed had the other party earlier complied, but the effort to render issues "moot" after the motion is filed oftentimes sways a court not to award fees even though it was the motion itself that compelled compliance.

I recently dealt with the "war of attrition" litigant, who has filed the same motion against our client time and again - literally, the same motion each and every year post-divorce.  In each of the three years since the divorce, he was denied his requested relief in three separate motions.  As sure as the sky is blue, the former spouse again filed a motion this year - his fourth - for the very same type of relief as to parenting time.  Notably, the former spouse also retains a different attorney for each motion in an effort to cleanse the court's palette.  In two of the three prior denials of his requested relief, he was Ordered to pay our client substantial counsel fees since he makes six times the annual income of our client, and his repeated efforts to financially pressure our client into getting what he wants have proven transparent in the eyes of the court.

On this fourth occasion, the story was the same and, thankfully the result - a denial of the former spouse's requested relief and an award of full counsel fees for our client.  While the immediate result was positive, as it has been after each prior motion, I have no doubt that the former husband will again file a motion for the very same relief in 2012, 2013 and beyond until the child is emancipated upon whom the requested relief was based.  While one can only hope that our client will continue to successfully fend off his attacks, the more unfortunate problem is that she cannot stop him from filing his motions.  In fact, when he was denied time around, he verbally questioned the judge, incredulous that he would be denied again despite the lengthy history of denials and him being found to have not only acted unreasonably, but in bad faith, as to his litigation tactics.  It was this response that only further confirmed that we will be back in court next year, starting anew the annual litigation cycle that not only leaves our client financially drained, but also causes great emotional strain upon her and her family that cannot be remedied by a mere award of counsel fees.

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We have blogged before on the increasing trend by trial courts to deny litigant's an opportunity to engage in oral argument in motion practice.  Rule 5:5-4 of the New Jersey Rules of Court provides that "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions . . . ."  Considering the highly overburdened court calendars currently plaguing the family court system in New Jersey, a trial court's reluctance to hear oral argument is understandable if it believes such argument is unnecessary based on the underlying papers before it.  However, oral argument is generally required where such substantive issues are raised and oral argument is requested so that a litigant has a full opportunity to present his or her case.

That brings us to the Appellate Division's recently unpublished (not precedential) decision in Rains v. Rains.  There, the former husband filed a motion to terminate or modify his alimony and life insurance obligations based on the former wife's inheritance received post-divorce.  The husband's application and wife's opposition each included a Case Information Statement presenting disparate pictures of the marital lifestyle for reference by the trial court in analyzing husband's claims for relief (not surprisingly, husband's presented marital lifestyle was far lower than that portrayed by wife).

Each party also submitted detailed proposals on the rate of return wife would receive on her inheritance.  Again, not surprisingly, husband proposed a rate of return higher than that posited by the wife based on a slightly more aggressive approach. 

Both parties requested oral argument, but the trial judge denied such requests and entered an Order with an accompanying statement of reasons that, in part, terminated the alimony obligation.  In the statement of reasons the trial court justified its basis for denying oral argument, but then proceeded to impute a reasonable rate of return on wife's inheritance based on a methodology proposed by neither party in their respective applications.  Since oral argument was denied, the parties were also denied the ability to contest the methodology unilaterally chosen by the court.  Notably, the statement of reasons also did not include a determination as to the parties' marital lifestyle, concluding that such a finding was unnecessary because the parties voluntarily entered into a settlement agreement without making a lifestyle determination. 

Reversing the trial court's decision, the Appellate Division found that the rate of return methodology employed by the trial court should have been the subject of oral argument by the parties, especially since the case law from which such methodology was derived was not applicable in all cases.  The Appellate Division found that the trial court should have considered the fact specific circumstances before it to determine a reasonable rate of return.  On remand, the trial court was to, among other things, make a finding as to the marital lifestyle. 

Most importantly, though, was that the parties would be able to more fully present their arguments as to a reasonable rate of return on wife's inheritance as it related to husband's modification/termination applicaiton.

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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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Last week, Larry Cutler posted a piece on this blog entitled "Are Mediation Proceedings Really Sacred and Secret?"  The inspiration for this post was a recent published Appellate Division case Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C.., a case in which a mediator actually filed a certification and testified.  That, however, is the exception but not the rule. 

Often enough, parties go through mediation and believe that they have reached agreement.  It happens in divorce cases, and as evidenced in Willingboro Mall, it happens in other litigations.  Can the mediator testify that (1) there was a settlement and (2) what the terms are?  R. 1:40-4(c) includes a  restriction that "[no] mediator may participate in any subsequent hearing of the mediated matter or appear as a witness . . . for any person in the same or related matter.." The reported case of Lehr v. Afflito reiterates that the involvement of the mediator is improper absent a valid waiver by both parties.

Should this be the case, however?  If the ultimate issue as to whether or not a matter was settled is in dispute, who better than the mediator to answer that limited question?  If the parties agree ta ht the matter was settled but disagree on what the terms were, who better to answer that question too?  Parenthetically, if you go on the New Jersey Judiciary Web Site, there is a form for use by a mediator which is to be submitted to the Court after mediation called the Mediation Case Information Form.  The form requires the mediator to advise the matter is fully settled, partially settled or not settled.  Seemingly, this form would not be evidential under Lehr.

Since the Court places such high importance on the settlement of a matter on a public policy basis, would requiring mediators to report these things, if there was a dispute, really up end the confidentiality of the process.  Doesn't settlement signal the end of the process? Interestingly, in Willingboro Mall, Judge Fall (a former Family Part Judge), noted the following in response to the plaintiff's position that for a matter to be settled during mediation, there must be a contemporaneous writing on the spot:

Plaintiff's position also ignores the reason for referring a matter to mediation. The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. See State v. Williams, 184 N.J. 432, 441 (2005). In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party. Indeed, such a result is the antithesis of the mediation process. Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment. The very purpose of the process is to resolve the dispute. (Emphasis added).

People can always make one of the ground rules of mediation or a settlement conference that there is no settlement until it is reduced to a writing signed by all parties.  That said, if they don't do that and then settle at mediation, should a party be allowed to renege, or even claim that there was no deal without the one person, without a vested interest in the litigation, telling the Court about the settlement?  As ADR is becoming more prevalent, my guess is that we have not seen the last of this issue.

_______________________________________

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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Recently I blogged on the difficulties experienced by some spouses left with no choice but to abide by New Jersey's "no fault" divorce process.  Looking at the husband in "Crazy, Stupid, Love", and discussing how, if the story there took place in New Jersey, he would have to get divorced simply because his wife wanted to.  Now from the Israeli newspaper "Haaretz" comes the story of a woman who was fined 200,000 shekels (approximately $56,000) by an Israeli court for refusing to divorce her husband, even after she was directed to do so by a Rabbinical court.  

Interesting was the Israeli court's rationale for the fine, deeming it to be sufficient compensation for the wife violating the husband's autonomy.  Also interesting was the wife's rationale for refusing the divorce.  While the husband proved to the court that his wife was infertile and, as a result, should be compelled to divorce him, the wife refused to grant the divorce or participate in the process because she believed that her husband (from whom she had separated years earlier) was simply interested in another woman.  Showing just how stern the court was with its ruling, it held that the fine would stand even if the parties subsequently divorced by agreement, and that the wife could be subject to future fines if she continued in her non-compliance.

Obviously this situation would not occur in New Jersey with its no-fault divorce option.  Further, although not an issue here since it was the husband who sought the divorce, it is worth noting the complexity and nuance involved with procuring a Jewish divorce.  Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry.  A secular divorce will not do the trick, as the couple's marital status will remain unchanged under Jewish tenet.  We have blogged on this topic previously.  Notably, in the United States, a wife may seek relief from a civil court for an Order directing the husband to grant the Get, such as via an action for specific performance since there really is not sufficient legal remedy to redress the wife's injury including, among other things, her inability to remarry in the eyes of Jewish law.  In the eyes of the New Jersey judiciary, compelling a husband to obtain a Get provides is for a secular purpose - the end of the marriage.

While such a situation is different from that described herein, both situations reflect the broad cultural and religious spectrum that underlies the divorce process domestically and abroad.    

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This past weekend, my wife and I saw the new film, "Crazy, Stupid, Love," the story of which revolves around a divorcing couple attempting to move on with their lives.  While I enjoyed the movie more than I thought I would, the purpose of this blog entry is not to give a movie review.  Rather, it is to focus on the theme that I took from the conduct of the husband in the movie, played by Steve Carrell, and how such conduct applies to "real life" divorce situations.

Mr. Carrell's character did not want to get divorced.  It is likely that we all know such a person.  In fact, when his wife played by Julianne Moore told him that she wanted a divorce, he unbuckled his seat belt, opened the door to a moving car, and rolled out onto the street from his passenger seat.  He then spent the rest of the movie trying to move on with his life while remaining an integral part of his family.  Had this scene unfolded in New Jersey, however, Mr. Carrell's character would have had no choice but to be divorced in this "no fault" state. 

While we have previously blogged on this topic, I was recently reminded about how this somewhat cold, hard fact can understandably be for some clients to swallow.  After years, if not decades of marriage with the same person, hearing from that person that they no longer want to be married, and then having to go through a divorce can be difficult to the point of traumatic.  The unwilling party is still trying to come to grips with a spouse who no longer wants to be married, while having no choice but to be attentive during the divorce process to protect his or her potential rights to support, equitable distribution and the like.

To that end, clients often let their focus on the root cause for the divorce or, perhaps, a desire to reconcile, overwhelm the need to pay proper attention to the divorce process.  Not surprisingly, this can be especially dangerous where the other party  has no interest in reconciling and is litigating as necessary to move forward.  Even worse, the other party may try to capitalize on your client's desire to reconcile to gain leverage in the settlement negotiation process. 

Ultimately, if one spouse wants a divorce, it is going to happen.  As matrimonial counsel, it is important to understand the very difficult, conflicting emotions experienced by your client, and even convey that understanding to your client during the course of representation.  Such an understanding will hopefully help focus your client on the divorce, and, perhaps, even aid in providing your client with a better sense of closure once the matter is complete.  It could also help your client understand that you can relate to their situation, which will hopefully lead to a stronger attorney-client relationship and representation. 

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In cases where a party owns a business, as justification for a disproportionate split of the business in equitable distribution, we often hear that the titled spouse has to be rewarded for their effort, ingenuity, ideas, etc. related to the business.  While arguably those things could be part of the analysis of the statutory factors, there really is not any law suggesting that this must be so.  In fact, the real justification that I can really get my arms around as to why a business would be disproportionately distributed is the fact that it is often pregnant with capital gains.  While the law is pretty clear that we cannot reduce the value because of hypothetical tax consequences, we can certainly look to same in the percentage distribution.  This makes sense because the failure to do so may actually give the non-titled spouse a greater percentage if taxes are ignored.

That said, I have heard this "sweat equity" argument over the years but have rarely seen a case where it was articulated.  That is until today when the Appellate Division released the unreported (non-precedential) opinion in Falkowski v. Falkowski.

In this case, the husband renovated two homes., purportedly without the assistance of the wife. The first was a premarital home which he renovated during the marriage.  The second, renovated after the parties' child was born and she left the workforce, was purportedly done on his days off (he worked full time as well.)  For the first house, the husband's "sweat equity" garnered him an additional 5% of the equity in the asset.  For the second home, the husband received 65% and the wife 35%.  In so ruling, the judge said:

[Husband] worked for five years to build that house into what it is, I gather, today. The testimony was pretty clear. Aside from the fact that [wife] had no say in it, and [husband] did all this with his friends, over five years he gutted everything to the frame. And he replaced everything. And he was fairly passionate when he testified about it too, all the work he did.

. . . . [I]t was a monumental amount of work. I was impressed with the fact that he
basically took the house down to its bare frame and bare rafters and built the entire
thing over. For those reasons I am not splitting this asset equally either. I
believe it's fairer to recognize that sweat equity and give him 65% of the net value and give [wife] 35% of the net value.

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New changes implemented by the IRS to the "Innocent Spouse" rule provide greater protection for those spouses seeking relief under the broadly described "inequity" provision of the rule.  Generally, speaking, most spouses file joint tax returns and do not consider a subsequent tax liability that may befall upon them.  In the face of such a scenario, the innocent spouse rule can provide relief from liability for a partner's tax debt under certain conditions.  For a greater sense of the rule and its specifics,review this prior entry on our blog and the linked alert previously issued by our Family Law Department on the topic.

New protections afforded by the legislative changes relieve claimants of the strict confines of a 2 year limitation on filing claims when the spouse claims that it would simply be inequitable to hold him or her responsible, which, in actuality, covers a broad spectrum of claims not encompassed by the other more narrow provisions leading to innocent spouse status.  Previously under a claim of inequity, if the spouse did not file for relief within 2 years of receiving an IRS collection notice of the subject debt, that spouse was not entitled to relief.  Oftentimes, an otherwise qualified spouse would be denied relief even if they did not know of the notice until after 2 years had passed (including cases where one spouse hid the notice from the other) or, even more specifically in the case of an abused spouse, knew of the notice but was too afraid to notify the IRS from fear of spousal retribution.

Significantly, this rule will seemingly apply both prospectively and retroactively, and the IRS may even suspend collection efforts on pending debts.  Even better, if you were previously denied a claim for innocent spouse status under an inequity claim due to the 2 year rule, the IRS said that you can reapply for the very same relief in most cases.  Suffice it to say, the relief for eligible "innocent spouses" can be life altering.

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On July 3, 2011, there was on op-ed in the New York Times by Alexandra Harwin entitled Ending the Alimony Guessing Game.

In the piece, she posits that

The unpredictability of alimony rules imposes several costs. Negotiating a settlement deal is much harder when spouses have no idea what they’ll end up with if they take their chances in court. Litigation drags on and the bills pile up when lawyers and experts have to prove their clients deserve any alimony at all. All the while, the emotional costs mount as people awaiting divorce continue in unhappy marriages; some stay married indefinitely because they don’t know if divorce will leave them with enough money to make it on their own. That’s particularly troubling in cases of domestic violence: some wives endure years of abuse because they can’t be sure husbands who control the family finances will be required to give them the money they need to live if they leave. New York’s law minimizes these costs by establishing a mathematical formula to calculate temporary alimony, which one spouse pays the other while the divorce is pending; it also allows judges to adjust those awards up or down under special circumstances.

She also believes that guidelines would make the judges jobs easier and the divorce process fairer.

At first blush, this makes sense - but does it really?  Since all alimony guidelines are income based (and as she points out, they are only for temporary support), they ignore parties' individual circumstances that are not income related.  In a way, guidelines presume that all peoples expenses are the same, that all people with similar income pay the same amount of taxes, that there are no special circumstances, that some families may be savers while others spend every penny earned (and then some), etc.

In NJ, to the extent possible, the goal of temporary support is to maintain the status quo. Sometimes it seems like or certainly could feel to the support payer to being unfair, especially where the other spouse is not working and the payor is paying for most direct expenses plus some amount for personal expenses on top of that.  The risk with guidelines, however, is that certain bills could never get paid if the personal responsible is not given enough money to pay and the other party is not required to make direct payments. 

On the other hand, does New Jersey have de facto guidelines anyway?  More and more, you hear about the "rule of thumb" - i.e. a mathematical formula where the lower income (or what that person could earn if not employed or working to their capacity) is subtracted from the payor's income and alimony is fixed at one-third of the difference.  You see lawyers use this all of the time.  You see judges do this, even when they know that they cant, in trying to settle cases or even in decisions after a trial.  They don't say that they are doing it but you can do the math and see that they are. The rule of thumb may be helpful to get a starting point for review, but if it is the absolute end point, ignoring all other factors, that could be a problem.

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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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I have to admit it.  I have not always been a fan of the 4-way conference.  Often, they have been the bastion of bad behavior, posturing and often just not as productive as mediation with attorneys present or negotiations back and forth, in writing, between counsel.  That said, I am beginning to come around to seeing the usefulness of earlier meetings and earlier mediations, where appropriate, to try to resolve as much as possible, as early as possible.  In fact, I was recently reminded of the importance of the willingness to meet when an opposing counsel was fired, seemingly because that attorney refused to meet or even pick up a phone to discuss issues.

The meetings do not have to be simply for settlement.  More often than not, couples continue to reside in the same household while the divorce case is pending.  Often in these cases, at best, people are on edge and at worst, it is the War of the Roses.  In these situations, an early meeting can be helpful to address conduct and civility within the home and perhaps interim exclusive parenting time between each party and the child(ren).  The alternative could be a domestic violence situation (real or bogus) which could possibly have been avoided.  Temporary support issues can be discussed.  The use, sale and/or restraints on assets can be addressed.  A source of funds for payment of counsel or expert fees can be discussed.  There really is no limit to what can be addressed.

Since custody and parenting time are issues that the courts want to have resolved sooner than later, because custody evaluations take a long time and are expensive, an early meeting can root out whether there are bona fide issues, or whether a settlement on these issues can be reached. 

Other times, these meetings are a good opportunity to allow one or both party with something "on their chest" to have the cathartic experience of getting something off their chest.  In some cases, this allows the issues in the case to be addressed now that this is behind the parties.

In other cases, the entire case can be settled or at least a framework for settlement can be reached, subject to the exchange of certain documents so that each side can be comfortable that they know everything that there is to know.  Even if you cannot settle, you get to learn about the other side's positions, issues, perhaps evidence, etc. 

While we are used to and adept at litigation and while some cases require some (if not a lot of litigation), this is not the case in every divorce.  Even in high conflict matters, meetings and opening a real dialog can help to keep the lid on things so that the attention can be turned to the real issues.  Figuring when to meet is the trick.  Refusing to meet, at all, is usually a mistake.  Usually something good can come of it.

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Mark Ashton, a partner in our Exton (Chester County) office, and former editor of our Pennsylvania Family Law Blog, wrote on interesting post entitled "The Tangled World of International Custody; The Hague Convention" that was recently published on that blog.

Mark's post discusses that the May 13 edition of the Wall Street Journal featured an article concerning the internationalization of the home buying market. Mark notes that as our global economy shrinks, people are buying homes in far off places as a matter of convenience and investment. Mark posits that easy access to international residences, however, can have unintended consequences as a May 13th interview with Mr. David Goldman demonstrates.

We have blogged in the past about Hague issues and the tragic story of the Goldman custody fight involving the abduction of his son, by David's former wife, to Brazil, and the efforts ta ht she and her family took to prevent the return of the child.

As reported in the New Jersey Law Journal, two weeks ago, a New Jersey law firm was found liable to the ex-husband of a former client for giving her the child's passport which was supposed to be held by her attorneys per a court order - allowing her to abscond with the child to Spain.  The jury awarded the father $950,000 with potentially more in legal fees to come.

In cases where there could be ties to other countries, some discussion should be had to determine whether safeguards need to be put into place. Safeguards are not required in every case, but where a client has some concern, discussions about passports and international travel may be warranted. 

In any event, as usual, Mark's post provides some interesting food for thought.

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Leslie Spoltore, a partner in our Wilmington, Delaware office, wrote a post on the Delaware Trial Practice Blog entitled "Civil Union Bill Provides For Divorce/Annulment In the Delaware Family Court."

The bill, which becomes effective on January 1, 2012, the right of a same-sex couple to both form a union, as well as the couple’s right to terminate their union. The bill confers upon the Delaware Family Court the right to hear actions to dissolve civil unions brought by residents of the State of Delaware. In addition, the legislation permits Family Court to hear actions for divorce and annulment of civil unions filed by non-residents if the union was solemnized in Delaware and if the jurisdiction in which a party to the union lives does not permit such an action for divorce or annulment.  Put another way, even if the couple no longer lives in Delaware, if the state in which they live will not allow for a divorce or other legal termination of the relationship, if the relationship was formalized in Delaware, the parties can return there for a dissolution.

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This post was written by Melissa M. Ruvolo, a new Family Law associate, in our Roseland office, and soon to be an official contributior to this blog.

Our blog frequently features discussions regarding what constitutes domestic violence to warrant the issuance of a Final Restraining Order (FRO). Perhaps the most frequently alleged “predicate act of domestic violence” is harassment under N.J.S.A. 2C:33-4. What may constitute “harassment” was recently raised in the unpublished Appellate Division decision of A.B. v. L.S.M. decided on May 6, 2011.

The parties were unmarried but had been living together for almost four years. They had two daughters – a 3-year old and a 22-month old. During an argument, the defendant called the plaintiff a “b-tch” and the plaintiff admitted she may also have cursed and yelled at him. The defendant attempted to leave the home but while doing so, got a flat tire. When he tried to fix it with a car jack, the plaintiff twice tried to remove the jack from under the car and the defendant pushed her shoulders each time. She threw the daughter’s sippy cup at his face and broke his nose. Both parties applied for temporary restraining orders, which were dismissed. The defendant eventually moved out of the home and parenting time was ordered by the Court.

Two months later, the defendant went to the plaintiff’s home and knocked on her bathroom window, pleading to speak with her. The plaintiff refused. On the way home from plaintiff’s house, the defendant sent her an apologetic text message stating that he had no idea how much he had hurt her and would leave her alone.

Several days later, when the defendant went to the plaintiff’s home to pick up the children for parenting time, he asked to speak with her. He told her he “really missed her” and wanted to “hug and kiss her.” She responded that she didn’t want to talk to him or “have him touch her.” Later that evening, the defendant sent a text message to the plaintiff claiming the children forgot a teddy bear and blanket. She offered to bring them to his home and he agreed. When the plaintiff arrived at the defendant’s front door, he told her the children were already asleep, leading her to believe that the entire incident was a ploy to get her there. According to the plaintiff, the defendant grabbed her to prevent her from leaving and she told him not to touch her. The plaintiff’s friend, who was waiting in the car, witnessed the defendant give the plaintiff an unwanted “bear hug.”

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The usual result after a domestic violence trial where the parties had been living together at the time of the entry of the Temporary Restraining Order (TRO) is that a Final Restraining Order (FRO) will be entered and the defendant kept out of the home, or the TRO will be dismissed and the defendant would be free to move in.  What usually does not happen, and in the majority of cases cannot happen, is that the trial judge dismissed the TRO but Orders the defendant out of the home anyway.  However, that is exactly what the trial judge did in the case of C.R. v. A.R., an unreported (non-precedential) Appellate Division opinion released on May 5, 2011. The Appellate Division disagreed that this was proper in this case and reversed.

After the trial, the trial judge dismissed the domestic violence complaint, finding that the evidence did not
demonstrate the occurrence of any acts of domestic violence. However immediately upon explaining why the complaint should be dismissed, the trial judge stated the following:

Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she's the oldest and the adult, that she should be the spokesperson for all the girls. But it's clear that they don't want the parents living together.

And I —— I tend to agree with them. I don't think it would be in the parents' best interest to be living in the house together, in light of what's been going on.  So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that's on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby's] going to be leaving shortly, will be out of the country, and I —— assume that she has somewhat been the —— the leader or the caretaker for the girls while this has been going on for the last two months. So, [Alan], I am not going to allow you back in the house to live.

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To obtain a Final Restraining Order, a claimant must, among other things, establish that one of the predicate act of domestic violence actually occurred under N.J.S.A. 2C:25-19.  Notably for the purpose of this blog entry, theft is not one of those predicate acts.  The question then begs - can theft be a form of domestic violence as a component of a claim that one of the actual listed predicate acts occurred?  As recently addressed by the Appellate Division in E.M.B. v. R.F.B., a new published (precedential) decision, the answer could be "yes."

In E.M.B., an elderly mother filed a domestic violence complaint against her 56-year old son, with whom she resided.  Mom claimed that Son had engaged in an act of domestic violence by stealing her car keys, cell phone, bank book, money and some jewelry from her bedroom.  Based on these factual details, and Mom's testimony, which the trial court found credible, a Final Restraining Order was issued based on a finding that Son harassed mom. 

In reversing the trial court, the Appellate Division broke its decision down into two parts.  First, it concluded that theft in itself is not a predicate act under the Prevention of Domestic Violence Act and, as a result, a Final Restraining Order could not be issued on a claim of theft alone.  The Appellate Division then went into a more detailed analysis as to whether the acts of theft could be classified as an act of harassment.

As to one comment made by Son that Mom was a "senile old bitch," the Appellate Division found that, upon a review of the context and surrounding circumstances, while the phrase was upsetting to Mom, there was no purpose to harass behind the statement and no violation under either subsections (a) or (c) of the harassment statute.  The Appellate Division made a brief, yet interesting commentary on the constitutional implications of restricting speech in the context of the harassment statute, noting that because the First Amendment "permits regulation of conduct, not mere expression[,]" the speech must have a "specific intention [of] harassing the listener."  Mere expressions of opinion uttered through the use of offensive language is not enough to establish harassment.

As to the acts of theft, even if they could be considered a course of conduct, the Appellate Division concluded that there was a lack of proof that Son was motivated by a purpose "to alarm or seriously annoy" as required by subsection (c).  To that end, the Appellate Division found no evidence that the theft was anything more than the son taking Mom's property for his own use.  As to the prior history of domestic violence aiding the court in finding the occurrence of a predicate act of harassment, the Court concluded that prior incidents of theft could not be relied upon without proof that the thefts occurred with a purpose to harass Mom.  As a result, the Final Restraining Order was reversed.

While we have blogged about the somewhat difficult requirement of proving a "purpose to harass" in the past, E.M.B. is interesting in its constitutional analysis and review of the harassment statute in the context of theft.

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My father used to tell a bad joke that went "Q. Why do men die before their wives?  A. Because they want to."  Bad joke aside, while there are many studies that show that men are typically financially better off then women after a divorce, are they happier?  There is now a study that suggests that maybe they are not.

In fact, Aaron Weems, an associate in our Bucks County office and editor of our Pennsylvania Family Law Blog recently posted an interesting piece on that blog on the The Longevity Project, entitled "Ladies: Get Divorced and Live Great; Guys, Get Divorced and Die Early."

Aaron noted that  the authors concluded that after going through a divorce women tend to thrive and live long, active lives, while men, quite simply, do not. They die early. Aaron further noted that the impact on divorce was surprising: men who divorced, stayed divorced, or remarried and divorced again saw their mortality rates rise far above their long-married peers. Women, on the other hand, seemed to thrive after they divorced (single women and widows did similarly well). The authors reasoning was that women often left bad marriages and, for possibly the first time in their adult lives, found themselves in charge of their own life and were invigorated by the opportunity to live independently.

In any event, both Aaron's blog and the study itself are interesting reads and food for thought.  I will leave the joke telling to my father, however.

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It is typical for divorce agreements to contain a provision requiring an alimony payor to maintain life insurance to secure his alimony obligation and one, if not both parents to maintain life insurance to secure their obligations to their children.  In fact, Jennifer Millner, a contributor this this blog, and a partner in our Princeton office, recently did a post entitled Child Support Obligations Live on After Death, addressing what happens when a support obligor does not have the required life insurance at his death.

It is also typical for someone to cover their life insurance obligations through insurance they get as a benefit of their employment.  Many companies, for example, offer as a benefit, life insurance - one times their salary, three times their salary - for example.  What happens when someone leaves their job and loses this life insurance?

That issue was addressed by the Appellate Division in an unreported (non-precedential) opinion released on April 1, 2011 in a case entitled Starr v. Starr.  In this case, to secure his alimony, in the divorce agreement, it provided that, "Defendant shall designate plaintiff as a beneficiary of $150,000.00 of the proceeds of the group life insurance made available to him through his employment."  However, in 2005, he was given notice that his employment was terminating.  He did have the option of converting his group life insurance to an individual policy but he did not. 

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When parties resolve their divorce via a settlement agreement, can they agree that neither party will seek to modify the agreed upon terms of alimony and child support?  In New Jersey, a court may generally modify a support obligation at any point in time to achieve equity inherent in this State's alimony law.  For instance, as detailed countless times on this blog, a party must establish that they have experienced a substantial and continuing change in circumstances under the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980), in order to merit some form of support modification. 

An "anti"-Lepis clause, however, attempts to limit the court's ability to modify via a waiver by the parties to seek such modification.  To be enforceable, the clause must fulfill several conditions.  First, the parties must include such language in the settlement agreement "with full knowledge of all present and reasonably foreseeable future circumstances," and second, "must bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement."

However, consistent with my assertion above that such clauses are enforceable - until they are not enforceable - the overriding legal principle in New Jersey is that "If circumstances have made the parties' standards unreasonable, they can in extreme cases be modified.  In less extreme cases . . . the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments."

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Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer.  The process, however, starts even before that.  On our web site, we have an advice piece entitled Preparing for the Divorce Process. 

Since it is linked to this post, I will not repeat everything contained in the piece.  However, the topics contained in that piece are as follows:

1. Speak to an attorney now, not later
2. Selecting the right attorney (including how to get referrals for an attorney)
3. Gathering documentation
4. Preparing for the initial meeting
5. Telling the truth
6. Keeping a diary; and
7. Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times.  Divorce can be a long, highly charged, expensive process - emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children's interests.

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Oftentimes in typical family life, circumstances unfold between grandparents and their children that result in a "cutting of ties," so to speak, where contact ceases not only with the children, but with grandchildren as well.  By that time, grandparents have commonly formed loving ties and bonds with the grandchildren that are at a risk of breaking due to the conflict with the parents.  What are a grandparents' rights to have visitation with the grandchildren in such a situation?  The answer can be found in New Jersey's Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, which imposes a difficult burden upon the grandparents to establish a right to visitation because the grandparent is essentially seeking to intrude upon the overwhelming strength of a parent's fundamental, constitutional right to raise their children.   

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If you have been through the process of divorce and have a spousal support obligation to your ex, you should have been advised that aside from explicitly stating an end date for your spousal support obligation, there are few ways to end the payments.  Death is certainly one of them.  If your ex remarries that is a second.  What happens when your ex is living with someone else?

The issue of cohabitation has been dealt with by the courts in NJ in case law since the 1970's.  The issue in and of itself is not new.  How the courts have dealt with allowing parties to prove the issue has been somewhat fuzzy, until a recent unpublished Appellate Division decision provided what seems like some much needed, long time coming, guidance.  If you haven't already, take a look at Wonderlin v. Wonderlin .

So what's the guidance- well let's start with the basic principles cases like Konzelman v. Konzelman, 158 NJ 185 (1999) and Gayet v. Gayet, 92 NJ 149 (1983) have given us.  In Gayet, the court told us we need to look at whether the cohabitating couple bears the "generic character of a family unit as a relatively permanent household".  In Konzelman, the court told us that the relationship in question needed to show signs of "stability, permanency and mutual interdependence".  The proof required is that "of an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage" which include but are not limited to "living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle".  The problem for litigant's and practitioners alike has been, how do you prove such intimate details at first blush so as to convince a court that you have met your burden of proof and now the alleged cohabitating ex must produce evidence to show there is no economic benefit of the relationship and the spousal support is still needed?

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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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I recently blogged on the issue of how to treat unreported income, perks and other personal expenses paid through the business and the treatment of same for support purposes.  As noted in that post, the issue comes up both for support and business valuation purposes. 

In order to value a business, the experts come up with an income stream that gets capitalized.  That income stream is tax affected.  That is where the issue gets interesting.  More often than not, the experts tax affect the entire income, after adding back the perks, personal expenses, non-operating expenses, unreported income, etc. 

I have asked several of the forensic accountants why this is being done if this is note the economic reality for the business owner in that case.  More often than not, I have been told that you cannot assume that a buyer of the business would not declare all of the income and/or would improperly pay expenses through the business.  From a pure business valuation perspective, this seems correct and reasonable.

For purposes of equitable distribution, that remains questionable.  In the seminal case on business valuation in divorce in NJ, Brown v. Brown, discounts for lack of marketability and lack of control were not considered because the business was not really being sold.  Some have argued that Brown means a value to the holder standard is to be applied.  While I am not sure that that is the case, if discounts are not applied because there is no sale, then why are these excess perks and personal expenses tax affected when doing so artificially reduces the value of the business?  Put another way, if the business owner is not paying taxes on these things, why should there be this fictional tax be applied, which only serves to reduce value? At some point, I am sure this issue will be litigated further.  Until then, we will continue making the arguments on both sides.

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Last year, I wrote a post on this blog about the Madoff Mess hitting the divorce Courts, the trial court's decision in that case and even a podcast that I had participated in about the decision.

In this case, in June 2006, the parties agreed to evenly split the $5.4 million in an account they had with Madoff Securities. As a result, the husband gave the wife $2.7 million in cash, and retained the account. As a result of the Madoff Ponzi scheme that has essentially rendered the account worthless, the husband has filed suit seeking the $2.7 million that he paid the wife. The husband (a prominent attorney with a large NY law firm) alleged that because the account turned out to be valueless, the spirit of the agreement was broken. The wife's position was the husband withdrew probably $3 million to pay the wife, so the asset did exist at the time of the settlement agreement.
 

Acting New York State Supreme Court acting Justice Saralee Evans decided that the husband is stuck with his decision to keep the account instead of withdrawing his money before the December 2008 collapse of Bernard L. Madoff Investment Securities LLC. The Justice noted that while the husband claimed the Madoff account held no assets, he did not allege it had no value. Key to the decision was that in 2006 and "the several years after that plaintiff maintained this investment," the account "could have been redeemed for cash, presumably significantly in excess of its 2004 value." In addition, the Justice held that "An investor's ability to redeem an account for value, was the assumption on which the parties relied in dividing their property and in doing so they made no mistake."The public policy of the finality of settlements was upheld.
 

At the time, I wondered about the ultimate fairness of this and said:

That said, if this case was in New Jersey, there may be the possibility of a recovery here. Though the general rule is that equitable distribution is not-modifiable, the issue may turn on whether there was $5.7 million in the account at the time of the divorce or whether that was simply an illusion created by Madoff's alleged fraud. If the account really had no value at that time, then the parties made a "mutual mistake". In that case, the settlement agreement could be re-formed to create an equitable result. If the money was actually in the account at that time, there could be a different result. One could argue that this really wasn't any different than any other investment that loses value - though that result seems harsh. However, assuming the husband had that money in your ordinary stock account, given the stock market over the last year and current financial crisis, it seems unlikely that his $5.4 million would still be $5.4 million. If there were just stock losses, it is highly unlikely that he would be entitled to any relief. Moreover, it is not unlikely that if the wife invested her $2.7 million in stock or real estate, that she has her full $2.7 million either.

Whether is is ultimately fair since the asset may not have really existed is another story. It is different than retaining a stock account and then the market goes up or down because in that instance, there really was an asset as opposed to a fictional asset. It is also different than holding on to a home whose value has decreased, as I have blogged on before.

It turned out, the Appellate Division in New York agreed with my logic and reversed the dismissal of the trial court matter and allowing the matter to be opened up.

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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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Last year I wrote the indented piece below about the "New Year's Resolution Divorce."  We got a lot of response to that post, including it being cited elsewhere, so I thought I would re-run it.

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

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

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

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

In 2010, the phenomena started early for us and many other attorneys.  We were contacted by more people in December than in any year 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 2011 as a chance for happiness or a fresh start.  Happy New Year?!?!

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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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Can a trial court tell a litigant is a divorce that they don't have to pay their lawyer more than a capped amount.?  On November 30, 2010, the Appellate Division in the unreported case entitled McClutchy v. McClutchy answered this question no.

In this case, what apparently was a hotly contested matter that went to trial, but which the trial judge deemed ordinary and not complex, at the end of the trial the court was called upon to assess the parties' respective request for counsel fees that they were asking the other party to pay. Normally, each attorney would submit a Certification of Services required by Court Rule explaining and listing the work done. In this however, the trial court limited them to a one page submission about what was owed and what had been paid.  Thereafter, the trial judge, thinking that the parties' respective fees were excessive ruled that the parties fees were capped at $50,000 each, despite that substantially more had been expended and was owed, and moreover, that the lawyers could not seek to collect the amount over and above.  One of the things the judge commented on was that he thought that the matter could have been handled by an associate, as opposed to experienced counsel of the client's choosing.

The Appellate Division reversed this decision finding that it was beyond the scope of the trial court's authority, especially where the client was not objecting to the fee.  Even if that were to have happened, there are other avenues to address this and the trial court could not do so.

This case, while clearly an aberration in the system, raises several issues.  First, if a client retains and wants pre-eminent counsel to represent them, it is not for the court to dispute their right to hire counsel of their choosing.  in addition, there are times where cases that seem "easy" or "garden variety" do not settle.  Some times it is because one party is unreasonable or acts in bad faith.  Some times it is because both parties are unreasonable.  Some times it is because one party does not want a divorce so they drag the matter out with the hopes that the other spouse will "come to his/her senses" and take him/her back.  Of course, by precluding the filing of a Certification of Services, the Court did not get to see what was done and perhaps did not get information as to why this seemingly easy case went to trial. 

This case is another cautionary tale.  Things aren't always as they seem.  Litigant's have a right to pursue issues in court and have a court make a decision on.  They also have a right to fully present their request for counsel fees to explain why the quantum of fees was what it was.

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On October 28, 2010, the Appellate Division issued a very interesting opinion in the case of Holden v. Holden.  While I will be doing another blog on the aspect of the case dealing with child support when the parties' incomes exceed the Child Support Guidelines, this blog deals with an interesting decision regarding determination of income - particularly net income - for child support purposes. 

In this case, the father's salary was $240,000,  In his submission to the court, her argued that his budget included a tax reserve for anticipated taxes and an amount for debt service for past due taxes.  The mother argued in response that the husband's gross income should be treated as net income (child support is calculated after determining net income under the Child Support Guidelines) since the husband had not paid federal taxes since 1997, and in fact, the father sought employment outside of the country to evade his taxes.

The trial court agreed with the mother finding that the father failed to present credible evidence of withholding taxes and based upon his past practice of ignoring his tax obligations, based his support obligation on $240,000.  The Appellate Division affirmed.

This is a refreshing application of economic reality to get to a fair result.  Though not precedential, I think the arguments can be possibly extended.  In your average case, the Child Support Guidelines calculate taxes based upon published tax schedules, as opposed to actual taxes paid.  If someones actual tax obligation is far less, because they have additional deductions or for any other reason, they actually have more net income than the Guidelines calculations might reflect.  This case certainly gives rise to an argument that actual taxes paid should be used. 

Moreover, sometimes we add back perquisites to income and, in fact, the Guidelines say that "in-kind" benefits are income.  However, if they in-kind benefits are not taxes, why should they be added to income and tax effected for support purposes?  Similarly, when someone is self employed and the business pays personal expenses (legitimate or not) that get added back to income, why should they be tax affected if tax is not actually paid? 

If the goal is fairness based upon economic reality, this case actually provides an arrow in an party's quiver to make the argument that reality should be considered.

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Throughout the course of this blog's existence in the family law blogosphere, we have cautioned and advised on the pitfalls of failing to timely divide retirement assets.  An entry addressing this issue dating back almost two years can be found here, only showing how this important issue is one that divorcing parties often do not consider, but are faced with after the divorce is finalized.  How about on the flip-side of the coin, so to speak?  For the party whose retirement asset is to be divided, what is "fair and equitable" for equitable distribution as to when the asset should be divided and at what value?

The Appellate Division recently addressed this issue in the matter of Ejiofor v. Ejiofor, where it reversed and remanded a trial court's decision for a determination of the current value of the husband's share of the wife's retirement accounts. 

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This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.

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I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible.  That is not the case.  Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.

But shared parenting time is not an impossibility.  Supposedly, it requires parents who have the ability to communicate and cooperate.  That said, I have seen parents who cannot have a civil word with each other effectively co-parent. 

Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children.  Curiously, these definitions actually stem from the child support guidelines.  When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets - a sole parenting worksheet and a shared parenting worksheet (104 overnights and over).  While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.

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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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Recently, I was at a mediation where the mediator, when telling us his assessment of my client's case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense - but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level - what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party's relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party's confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

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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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On July 26, 2010, an equally divided New Jersey Supreme Court refused to hear an attack on civil union statute in a motion filed in the Lewis v. Harris case.  Rather, the Court's Order held that the matter cannot be decided without a trial like record and as such, denied the motion without prejudice for a new law suit to be filed.  The Order specifically noted that it made no determination on the consitutionality of the civil union statute.

In the dissent by the other three Justices, they framed the issue as follows:

Plaintiffs are six committed same-sex couples who have filed a motion in aid of litigants’ rights claiming that almost four years after Lewis v. Harris, 188 N.J. 415 (2006), and three-and-one-half years after passage of the Civil Union Act, N.J.S.A. 37:1-28 to -36, they still are denied the “full rights and benefits enjoyed by heterosexual married couples” mandated by the equal-protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution. In their papers, plaintiffs detail a host of workplace, public accommodation, family law, economic, and various other “rights and benefits” that, they allege, are
not afforded to them despite the Civil Union Act and the command in Lewis. In addition to certifications by the parties, plaintiffs cite to the report of the Civil Union Review Commission, N.J.S.A. 37:1-36, a body established by the Legislature as part of the Civil Union Act to evaluate the Act’s success, which concluded that civil unions have failed to deliver the mandate of equality guaranteed by Article I, paragraph 1. However, plaintiffs’ record has not been tested in the crucible of a litigated matter. Thus, we realize that we do not have a sufficient basis for debating the merits of the application, which raises a matter of general public importance and one of constitutional significance.

The next step should be the development of a record on which those important issues can be resolved quickly. At the very least, oral argument would have helped to guide us on the best procedural course for creating such a record. We are disappointed that three members of the Court have voted to deny the motion without oral argument and that plaintiffs must now begin anew and file a complaint in the
Superior Court seeking the relief to which they claim they are entitled. If plaintiffs’ allegations are true -- and we will not surmise whether they are or are not -- then the constitutional inequities should be addressed without any unnecessary delay. Therefore, we would hope that the proceedings in the Superior Court will be conducted with all deliberate speed.

One wonders whether there would have been a different result had Justice Wallace had been granted tenure and there was a full court of seven members.  That said, stay tuned for the next installment once the next round of litigation of this issue begins.

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On June 15, 2010, the New York Times reported on several proposed new laws affecting family law practice in New York.  One was to adopt no-fault divorce, which has long been proposed and long been opposed. At present, one still must prove fault grounds for divorce in order to get a divorce.  This has lead to protracted litigation that some have called cruel and unnecessary.  As the no-fault bill has finally passed the Senate, there is an expectation that it will also pass the assembly.

New Jersey has had no fault divorce for many years, though in actuality, it has really been prevalent for the last 4 years or so when "irreconcilable differences" were added as a cause of action.  Prior to that, the only no-fault ground was 18 month separation.  As most people did not want to wait 18 months, the majority of divorce complaint alleged "extreme cruelty" that made it unreasonable and improper to require the parties to remain married.  In many ways this was somewhat bogus because there was rarely any real testimony about the allegations other than to re-affirm that what was in the complaint was true and correct and if asked to testify about it at length, the testimony would be substantially the same. 

That said, despite telling parties not to worry about it and not to get upset about it, they almost always did (not to mention that there was no a public record of very private gripes).  As such, the other party would then file a counterclaim alleging their own version of "cruelty."  Thankfully, irreconcilable differences has in most cases done away with the need to go through the financial and emotional expense of this type of Complaint (though there are times when it is still necessary for other reasons). 

The only thing that I miss as a divorce lawyer in not reviewing the cruelty complaint and counterclaim is that it may take a little longer to really understand the dynamic between the parties that often would come out loud and clear in their initial pleadings.  That said, no-fault is still better in most cases.

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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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The online edition of today's New York Post reported that Tiger Woods and his wife Elin have resolved the issue of custody.

The details were not really set forth in the story nor are they really important.  Assuming all that has been reported on is true (and quite frankly if even if only some of it were true), if there is ever a spouse that had a right to be really mad it is Elin Nordegren.  Yet even these people were seemingly able to put aside the anger, lack of trust, resentment, etc. that is likely to exist to do what is best for their children.  From all accounts, it does not appear that the children were used as pawns. 

So if this story is try, these people should be commended and serve as an example to others (at least as to this issue and maybe golf) on how to put aside the emotional issues surrounding a breakup and potential divorce and put the children first. 

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Divorce Negotiation Primer".

There are several points I would like to highlight:

• negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
• negotiation is intended to narrow issues
• at the time of trial, no one is bound by the positions taken during negotiations
• a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
• Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.

As usual, Mark's advice is good advice. 

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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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Previously we blogged on alternate dispute resolution methods ("ADR") such as mediation and arbitration. "Collaborative Divorce" is another ADR method.

"Collaborative Divorce" is defined as  a form of alternative dispute resolution for divorcing couples where a  team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however, they work cooperatively with their spouse.  The collaborative process uses informal discussions and conferences attended by both spouses and their attorneys to settle all issues. The collaborative process is premised upon an atmosphere of honesty, cooperation, integrity, and professionalism. It requires that both spouses, with the assistance of their attorneys, provide all pertinent documents and information relating to the issues to be settled. In the event that experts are necessary, it encourages the use of jointly retained experts. Both spouses and attorneys are required to work together toward a shared resolution that is geared toward the future well being of the family. If the parties cannot reach a settlement through the collaborative process approach, the collaborative lawyers withdraw from the case and the parties then retain trial attorneys to pursue the matter in court.

Is collaborative divorce for everyone? I am a divorce litigator and people often come to me with complex, high conflict and/or high stakes cases so perhaps I am biased in that regard. Even still, I cannot see collaborative divorce being for everyone to be used in every case. Just as I wrote about my concerns about mediation, i.e. the possibility of a spouse taking advantage of an imbalance of power; the settle at all costs posture whether the resolution is fair to both parties or not; etc., I think that those pitfalls are just as possible in collaborative divorce.

For instance, I recently heard of a divorce case described as "freakish". At the same time, the husband was described as a "power broker" and the wife was a housewife with a young child. Most confusing was the revelation that the parties were involved in a "collaborative divorce."

To me, this sounded like a recipe for disaster. How can a "freakish" divorce be collaborative? If both parties are "power brokers" perhaps collaboration could work though it seems like both would want to "win." Collaboration seems unlikely when one party is a "power broker" and the other is not - capitulation seems more likely than collaboration. Ever wonder why the more powerful spouse wants to mediate?

Perhaps for a garden variety divorce with two reasonable people, this can work. In most other cases, it seems that the interests of the weaker party could be compromised. 

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As tax season is upon is, the issue of whether to file joint returns is upon us as well.  i previously blogged about the topic of innocent spouse relief and the fact that the innocent spouse form that the IRS has published for those seeking innocent spouse status has many traps for the unwary. 

Today, I read an interesting article by the accounting firm Smolin Lupin "Spouses are Guilty Until Proven Innocent - Tax Liability Shared by Both." 

The article reminds that you are generally liable for paying the tax due, plus interest and any penalties. Moreover, even if the income and/or unreporting is attributable to your spouse, since the filing of a joint return creates joins and several liability, your wages can be seized by the IRS.

The article further reminds that one may qualify for "innocent spouse" relief if that taxpayer can prove:

• There is a substantial understatement of tax attributable to the grossly erroneous items of your spouse or ex-spouse.
• The hidden income belonged to your ex-spouse and you didn't benefit from it.
• You didn't know or have reason to know about the understatement.
• It would be inequitable to hold you liable.

The article closes with the following excellent piece of advice:

Don't count on innocent spouse relief if you know your spouse is cheating. Consider filing separate tax returns -- especially if you're in the process of a divorce. It may save you a bundle in the future.
 

As noted in my prior entry on this topic, since the innocent spouse form has to be signed under penalty of perjury, a wrong answer not only could preclude granting of Innocent Spouse Relief, but also could be used to assert - if not prove - tax fraud given a person's knowledge and involvement when the returns were filed.  As such, the bottom line is that great care should be taken when completing this form. A person seeking to do so should consult with an attorney and tax advisor, in advance, so as to not incriminate themself.

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We have previously blogged about the broad protections attached to the New Jersey Prevention of Domestic Violence Act.  However, can a victim alleging domestic violence only having occurred in another State come into New Jersey and seek the Act's protections?  The short answer is - yes.  The question essentially becomes one of jurisdiction - do the New Jersey courts have the power to hear and rule on the subject matter of the case (the domestic violence alleged) as well as over the person alleged to be the aggressor?

Within recent years, the Supreme Court of New Jersey essentially established that it has jurisdiction over the acts of domestic violence itself (the subject matter) even if the only acts alleged to have occurred took place outside of New Jersey.  This appears to be the case even where the purported aggressor has done nothing to pursue the victim within the State's borders, including not showing up for any court hearing held in New Jersey with respect to the domestic violence allegations. 

The question of whether the court has power over the aggressor, however, is a bit trickier, as the victim must establish that the aggressor has established "minimum contacts" with the State of New Jersey from his or her own purposeful conduct - not solely the actions of the victim.  The aggressor must reasonably expect that, by his own actions, he could fairly be brought into a New Jersey court.  Thus, the victim's act of fleeing into New Jersey and alleging acts of domestic violence that occurred outside of the State is not enough to establish that New Jersey courts have personal jurisdiction over the alleged aggressor.

Despite the broad protections of the Act designed to provide aid to victims, these fundamental, constitutional notions of fairness cannot go ignored.  While the victim seeks the protections of New Jersey's law, he or she can also seek the protections of the law of the State where the alleged domestic violence occurred, without issue as to whether the court there has power over the aggressor.  This way, the victim is not left without protection and the aggressor is not essentially deemed to have "purposefully availed" him or herself of the rights and privileges of every state.

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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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Almost two years ago, in fact, one of the first blog posts even on this blog, I authored a post entitled "All Cases Have a Life of their Own." I just finished a case this week that gave me reason to think about this post again. 

In this case, one party just didn't want to get a divorce.  It did not make a difference that the other spouse made clear in no uncertain terms that the divorce was going to happen.  In fact, because the spouse asked the other to reconcile every single day, knowing that it would upset the other spouse, that spouse heard every day that the marriage was over.  Even the children's therapist advised that that spouse should move out given the impact of that spouse's continued presence on the children, etc.  Nothing sunk in.  Eventually, the finality of the trial date, in fact on the trial date, did the matter finally settle, but not without several last ditch attempts not to proceed with the divorce.  The real shame is that substantial fees had to be incurred to prepare for trial - an unavoidable problem because one spouse held out hope for reconciliation until the bitter end.

I have another matter, where a spouse is refusing to make settlement proposal but is demanding a settlement conference.  It seems clear that the desire is to get the other spouse in a room to bully that spouse into a settlement or otherwise because there is the expectation that the other spouse will capitulate just as always occur ed during the marriage.

Some spouses refuses to provide discovery or comply with others, hoping to wear the other spouse down.

The bottom line is that hopefully the put upon spouse will stay strong and not fall prey to the other parties unreasonable if not bad faith conduct.  More importantly, hopeful the Court's will protect that party with a fair and generous award of counsel fees.

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What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010. 

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation.   After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA).   At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.

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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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Previously, I blogged on the Appellate Division's reported (precedential) decision in Kay v. Kay.  The New Jersey Supreme Court granted Certification and the decision was rendered on January 6, 2010.  In a per curiam decision (i.e. no one specific Supreme Court Justice authored the opinion), the Appellate Division decision was affirmed for substantially the reasons set forth in Judge Grall's appellate opinion.

To reiterate what this case is about, the Appellate Division held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. In that case, the husband died basically penniless and the wife had assets in excess of $650,000 at the time.

The Appellate Division and now Supreme Court held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. This case rejects the holding in Krudzlo v. Krudzlo, a reported trial court opinion from 1990.

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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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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. 

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What payment obligation, if any, do divorced parents have towards their child's post-high school education?  The New Jersey Supreme Court concluded more than 25 years ago that a child's right to support includes a "necessary education" after high school, whether it be a vocational school or college.  However, a parent's obligation to pay for such schooling depends generally on the expectations and abilities of the parties involved to pay, as set forth in 12 different factors including:

1.  whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;

2.  the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;

3.  the amount of the contribution sought by the child for the cost of higher education;

4.  the ability of the parent to pay that cost;

5.  the relationship of the requested contribution to the kind of school or course of study sought by the child;

6.  the financial resources of both parents;

7.  the commitment to and aptitude of the child for the requested education;

8.  the financial resources of the child, including assets owned individually or held in custodianship or trust;

9.  the ability of the child to earn income during the school year or on vacation;

10.  the availability of financial aid in the form of college grants and loans;

11.  the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and

12.  the relationship of the education requested to any prior training and to the overall long-range goals of the child.

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In the latest development in the ongoing international custody saga that has garnered the world's attention and involvement from the Obama Administration, the Brazilian Supreme Court has ordered the return of 9-year old Sean Goldman to the United States.  The Court specifically concluded that the child was to be given a say in whether he stays or returns to the United states with his father, David Goldman, a New Jersey resident.  This a few days after a federal appeals court ruled that the child must be returned to Mr. Goldman and also after a judge on the Supreme Court had then stayed the child's return.

For those not familiar with this years-long story that began dominating headlines and political attention within recent months, Mr. Goldman has been fighting to obtain Sean's return since 2004, at which time his former wife took Sean on what she indicated was a vacation to her native Brazil.  While in Brazil, the wife then divorced Mr. Goldman, stayed in Brazil and remarried, only to pass away in 2008 during child birth. 

Mr. Goldman deemed the act one of international child abduction and the United States has indicated that Brazil has failed to abide by the Hague Abduction Convention designed to address such international custody issues.   It was initially in 2004 that a New Jersey Superior Court held that the former wife's taking and keeping of Sean in Brazil was wrongful.  In 2005, a Brazilian court concluded that, while the former wife's actions were illegal under New Jersey law, the Hague treaty set forth that Sean could remain in Brazil if it could be established that he was settled there.

Earlier this year in June, a similar scenario unfolded where the Brazilian Supreme Court stayed the order of a federal judge to return Sean to Mr. Goldman.  Considering that Sean is only 9 years old, the Brazilian Supreme Court's decision to place such weight on where the boy wants to live is intriguing, only further heightening the attention associated with this matter.  News reports are indicating that the family in Brazil has and will file several more applications to delay the child's return yet again.  Stay tuned for further updates on this blog as they unfold.

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Under New Jersey law, a party of a divorce can seek modification of an order for child support or alimony if there is a “change of circumstance” that affects the income or earning ability of one of the parties.  Lepis v. Lepis, 83 N.J. 139 (1980).  This proposition is one of the most common reasons for post-judgment motions in New Jersey Family law courts, especially in the current economy.  But in a recent unpublished New Jersey Appellate Division decision, Good v. Nedza, the Court affirmed a post-trial order, which did not permit a recalculation of child support or arrears because one of the parties failed to act on information they had obtained years earlier and had at the time when the parties entered a Consent Order for child support.

In Good, the parties were divorced in 2002.  At the time, Mr. Good was the primary provider and the wife, Ms. Nedza, was a homemaker.  The parties had three children.  They agreed that Mr. Good would pay child support and alimony, and they would share joint legal custody of the children with Ms. Nedza having primary residential custody.  Over the years circumstances changed.  By September 2005, all of the children were residing with Mr. Good and his child support obligation was terminated.  A Consent Order entered in January 2006 addressed Ms. Nedza’s child support obligation to Mr. Good.
 

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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. 

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If a California web designer gets his way - Til death do us part? – will mean just that. John Marcotte, who runs the comedy website Badmouth.net, is attempting to put a measure on next year’s ballot that will ban divorce in California. The effort is meant to be satirical. The thought process behind the idea is that if California can pass Proposition 8, which bans same-sex marriage, allegedly to protect the sanctity of marriage, than what prevents California from going one step further and banning divorce?   

So far Marcotte has not collected the 694,354 signatures necessary to put the proposition on the ballot, but with a grass-roots movement and use of the Internet, he may achieve his goal – although it would be highly unlikely to pass.  And even if it did pass, it would certainly be found unconstitutional if challenged in court. But the proposition does raise an interesting question – does the State have an interest in protecting the sanctity of marriage?

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Since they have been in the news a lot lately, I have bloged a lot recently on celebrity divorces, be it John & Kate, Stephanie Seymour or Jim Nantz.  That is why the article from Billy Witz that recently appeared in the New York Times about the divorce of Frank McCourt and Jamie McCourt, the owners of the Los Angeles Dodgers got my attention.

Both parties claim to own the team - though Frank claims to be the sole owner.  Both worked for the team until recently, when Jamie was fired.  As a sign of the war to come, Jamie's lawyers budgeted her legal fees for this matter to be $2 million.  Per the article, the central issue is as follows:

"The key legal issue is whether the Dodgers are considered the McCourts’ community property. Under California law, a couple’s assets are split 50-50 unless a written agreement states otherwise. Shortly after buying the Dodgers, the McCourts put the team in Frank’s name and all their property in Jamie’s name to protect the homes from potential creditors. One of her lawyers, Michael Kump, said they would challenge the validity of the postnuptial agreement.

If the agreement is not valid, Fisher said, the McCourts would probably be forced to sell, as John Moores did with the San Diego Padres when he divorced."
 

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We have blogged in the past about parental alienation and "Parental Alienation Syndrome."  There was an excellent article in US News and World Report on line posted on October 29, 2009.  To read the article, click here.  To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.  The new edition is scheduled to be published in 2012. 

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness.  On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.  The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

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