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Posted on January 24, 2013 by Robert A. Epstein

DO YOU KNOW THE LAW BEHIND YOUR OWN CASE?

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.

Posted on December 28, 2012 by Eric S. Solotoff

Preparing for the Divorce Process and How to Select a Divorce Attorney

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.

Tags: Divorce, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, How to select a divorce attorney, Maplewood Divorce Attorney, Millburn Divorce Attorneys, Practice Issues, Roseland Divorce Attorneys, Short Hills Divorce Attorneys, West Orange Divorce Attorneys, divorce planning, how to choose a divorce attorney, preparing for divorce

Posted on August 24, 2011 by Robert A. Epstein

THE USE OF MODERN TECHNOLOGY AS A FORM OF DOMESTIC VIOLENCE - THE APPELLATE DIVISION WEIGHS IN

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.

Providing it's first extremely notable quotation that will likely be cited time and again as these cases become more frequent, the Appellate Division noted:

We conclude the evidence presented here shows only the convergence of modern technology and the foibles of human judgment. Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions. The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient.

In the case at issue, the parties utilized text messaging as a primary mode of communication about their children. The Court acknowledged:

[T]exting provided an efficient means of exchanging information as parents, while avoiding the personal contact associated with a telephone call or a face-to-face encounter. The limited number of words that can be sent at any one time in a text message also minimized the risk for extraneous matters to interfere with the primary dialogue of parenting. Despite these qualities, texting is merely a tool, a means to an end. Without reasonable cooperation, texting can lead to the frustration and misuse we witness here.

Under such rationale, the Appellate Division found that the text messages were not sent with the requisite "purpose to harass" to establish the occurrence of harassment. To that end, it found notable that the former wife responded only once to 18 messages sent by the husband inquiring as to the daughter's SAT scores and that if she had "simply answered" his question, he would have stopped texting. Instead, her decision to ignore him was found to have essentially exacerbated the situation.

The Appellate Division also found it was improper to consider texts by the husband's current wife as evidence of harassment, since there was no evidence that the husband directed his current wife to act on his behalf. In fact, the former wife even acknowledged that the husband's only purpose in sending the texts was to inquire about the daughter, from whom he had become estranged, and that she was only "annoyed" by the texts after choosing to ignore them. The Court even found the husband's frustration reasonable, albeit misguided, but, since it was limited to inquiries about the children, it lacked the "purpose to harass."

Suffice it to say, L.M.F. is a fantastically interesting decision for family lawyers, standing out in this area of the law for a variety of reasons, most notable of which is its foray into the use of electronic communications as a form of harassment. The intelligent way in which the Appellate Division approaches this issue, especially in the context of divorced spouses trying to co-parent while keeping their emotions in check, provides great guidance for both litigants and legal counsel moving forward. While it may not be as simple, as a result, to establish an incident of harassment in such a case, the decision upon review seems to come at a perfect time in the crossroads of domestic violence law and electronic communications.

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Robert Epstein is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild's Family Law Practice Group. Robert practices throughout New Jersey in all areas of family law and family law litigation. You can reach Robert at (973)994-7526, or repstein@foxrothschild.com.

Tags: Bellville Divorce Attorneys, Domestic Violence, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Prevention of Domestic Violence Act, West Orange Divorce Attorneys, caldwell divorce attorneys, electronic communications, harassment, text message, texting

Posted on August 14, 2011 by Robert A. Epstein

ISRAELI COURT FINES WOMAN FOR REFUSING TO DIVORCE HUSBAND

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.

Tags: Divorce, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Get, Jewish divorce, Newark Divorce Attorneys, South Orange Divorce Attorneys, West Orange Divorce Attorneys, no fault divorce

Posted on April 20, 2011 by Robert A. Epstein

APPELLATE DIVISION ANALYZES THEFT AS AN ACT OF DOMESTIC VIOLENCE

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.

Tags: Bellville Divorce Attorneys, Domestic Violence, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Newark Divorce Attorneys, Prevention of Domestic Violence Act, South Orange Divorce Attorneys, harassment, purpose to harass, theft

Posted on March 27, 2011 by Robert A. Epstein

WHAT IS AN ANTI-LEPIS CLAUSE AND CAN IT BE MODIFIED?

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."

The Appellate Division recently affirmed a trial court's finding regarding the enforceability of anti-Lepis language in King v. King, where the husband sought to have the language deemed unconscionable in an effort to modify support following his loss of employment. Since the language was found to have fulfilled the above-conditions and was not an "extreme" case warranting a support reduction, the trial court did not alter the support amount, but rather allowed for the accrual of unpaid portions of support conditioned on partial periodic payments. The Appellate Division found this approach to be an appropriate alternative, thereby providing some form of relief to the payor without modifying the actual monetary obligation.

To that end, the Appellate Division agreed that the settlement agreement was not so unfair and inequitable to set it aside, especially since loss of employment was expressly mentioned in the anti-Lepis language. It was not found to be an "extreme" situation because the payor failed to provide sufficient evidence as to how he lost his employment and his search for a new position to mitigate the resulting problem.

I found a few notable points made by the Appellate Division towards the end of its decision. First, it noted that, while the payor's decision to agree to such language "may have been a bad decision in retrospect, we do not believe that amounts to unconscionability." This language only reinforces the risk and inherent danger to the payor spouse of an anti-Lepis clause. A court may not order the imposition of such language upon parties, since it is contrary to the alimony statute and Lepis itself, but it can enforce a parties agreement to such language. If a payor spouse is going to agree to such language, he or she should seek to obtain substantial consideration in return considering the major concession being made.

Next, the court noted that it can "take judicial notice of the recent severe economic downturn," but that "there have been signs of an economic recovery." One published Appellate Division decision since the start of the downturn conveyed that judicial notice could be taken of the downturn itself, but I have experienced on several occasions courts declining to do so, limiting that published decision to its facts. Further, many motions for a support modification still seek to rely on the economic downturn as a primary basis for a reduction. With the Appellate Division noting here that a recovery is in progress, is the end approaching for the economy-based Lepis applications about which so much has been written since 2008? At the very least, perhaps a more industry-specific approach will be even more necessary than before to highlight any ongoing downturn.

Finally, in an interesting footnote, the Appellate Division asserted the legal principle that the term of limited duration alimony may not be modified except in "unusual" circumstances. It added, however, that a trial court may need to consider on a future motion whether an "extreme case" meriting an actual support modification despite anti-Lepis language would also constitute "unusual circumstances" meriting an alimony term extension at the lower rate. While the Appellate Division's assertion inherently makes sense, a merging of the two concepts seems to unfairly overcome the hurdle of establishing "unusual circumstances" as to the length of alimony.

Nevertheless, entering into an anti-Lepis provision can have potentially harmful ramifications on the payor spouse and, as a result, should only be considered in limited situations and in exchange for substantial consideration.

Tags: Alimony, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Lepis, North Caldwell Divorce Attorneys, Roseland Divorce Attorneys, West Caldwell Divorce Attorneys, anti-Lepis, changed circumstances, limited duration alimony, support

Posted on February 26, 2011 by Robert A. Epstein

GRANDPARENTS FACE A STEEP BURDEN IN SEEKING VISITATION

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.

The statute sets forth as follows:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:

(1) the relationship between the child and the applicant;

(2) the relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) the time which has elapsed since the child last had contact with the applicant;

(4) the effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) if the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) the good faith of the applicant in filing the application;

(7) any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.

In addition, because of the fundamental parenting rights I described above, the grandparents must also establish by a "preponderance of the evidence" that the "visitation is necessary is avoid harm to the child." To do so, case law in New Jersey requires that the grandparents establish a "special need for continued contact" beyond the "ordinary grandparent-child relationship and its unwanted termination." Allegations must be specific as to the harm that would befall upon the grandchildren, based upon the "unusually close" relationship between the grandparents and the children or on "traumatic circumstances such as a parent's death." The mere potential loss of memories or the grandparents' love and care does not meet the grandparents' required burden.

It was upon an examination of the above that the Appellate Division in Levine v. Levine et al., affirmed the trial court's dismissal of a grandparent's application for visitation under the statute. In so doing, the Appellate Division found that the grandparent failed to establish that his relationship with the grandchildren was anything more than "an ordinary healthy and loving grandparent-grandchild relationship."

The Appellate Division also rejected the grandparent's request to have the grandchildren evaluated by a psychological expert, finding it unnecessary to expose the children to such a process when the situation posed a standard relationship, without any specific allegation of unusual harm or a special relationship. The grandparent's submission of his own expert report, which was based solely on the grandparent's own statements (since the expert had not actually met with the parents or the children) failed to sway either the trial court or Appellate Division in his favor.

This case confirms that, while New Jersey's Grandparent Visitation law does, in fact, provide certain rights and protections for grandparents that did not previously exist in this State, the fundamental rights of parents to raise their children carries far greater weight in the overall analysis.

Tags: Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Grandparent visitation, North Caldwell Divorce Attorneys, West Caldwell Divorce Attorneys, West Orange Divorce Attorneys, constitutional, grandparents visitation, visitation

Posted on February 7, 2011 by Robert A. Epstein

NEW APPELLATE DIVISION DECISION REGARDING PARENTING COORDINATOR GRIEVANCES AND FEES

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.

In reviewing the matter on appeal, the Appellate Division reviewed the history of the Pilot Program, discussing the positive impact of parenting coordinators in helping to resolve various day-to-day parenting issues on the parties and the court calendar. The Court directly quoted from the Guidelines as to the parenting coordinator's role:

The parenting coordinator's goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The parenting coordinator's role is to facilitate decision-making between the parties or make such recommendations, as may be appropriate when the parties are unable to do so. One primary goal of the parenting coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The parenting coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

Further, the parenting coordinator, as noted by the Court, cannot modify any Order or Judgment without mutual consent from the parties, as memorialized in a Consent Order. To that end, as referenced in Eric's recent blog entry, the trial court cannot abdicate its role to the parenting coordinator.

The Grievance Procedure set forth in the Guidelines is also more specifically set forth as follows:

(8) Grievance Procedure — A party having a complaint or grievance shall discuss the matter with the Parenting Coordinator in person in an attempt to resolve it before pursuing it in any other manner. If the issue remains unresolved, the parties shall submit a written letter to the Parenting Coordinator detailing the complaint or grievance, with a copy to the other party, to both attorneys (if any), and to the attorney for the child(ren) if one is in place. The Parenting Coordinator shall within thirty (30) days provide a written response to both parties and the attorneys. The Parenting Coordinator at his/her discretion may schedule a meeting or conference call with the attorneys or with the attorneys and the parties in an effort to resolve the complaint. In situations where the grievance or complaint is not resolved by this process, the dissatisfied party may request a court hearing to make a determination on the issue(s).

The Appellate Division concluded that the Grievance Procedure had been properly followed, but also concluded that there existed a contractual basis (in light of the parenting coordinator's retainer agreement) for the plaintiff to pay the coordinator's time for responding to his long list of grievances. To that end, the coordinator's response served two (2) purposes - 1) it provided a defense to the charges against her, and 2) it constituted a "report" to the trial judge, from which the judge determined the baselessness of plaintiff's claims. It was, therefore, also, a necessary component of the parenting coordinator's role to provide such a response for which she could charge fees to prepare. The Appellate Division similarly noted that public policy was advanced by awarding the coordinator's fees for such work, finding that the inability to charge for such a response to grievances would effectively cripple the parenting coordinator program considering the number of parties dissatisfied with the process.

To that end, the Appellate Division concluded that the plaintiff was not entitled to a plenary hearing under the Pilot Program Guidelines, but that he was limited to merely requesting a hearing. After such a request, it is then up to the trial judge to determine if such a hearing is warranted under a given set of circumstances. In the present case, the trial judge concluded, in the mode of summary judgment (even though it was on the trial court's Order to Show Cause where summary judgment rules do not apply) that there existed no genuine issue of material fact warranting a hearing. The plaintiff's act of simply referring to the coordinator as a liar did not justify a hearing.

Similarly, the Appellate Division concluded that the Guidelines also did not call for the holding of a hearing to resolve a pay dispute for fees incurred by the coordinator in performing her standard coordinator services (beyond responding to plaintiff's grievances). The trial judge was found to not have simply "rubber stamped" the coordinator's requested amount of fees. Rather, he conducted a searching review of the voluminous submissions before him in concluding that the services performed and amount charged by the coordinator were reasonable, and, as a result, no hearing was necessary.

While a parenting coordinator can serve a highly useful purpose under certain circumstances, this matter conveys how both parties must be willing to cooperate with the process, and how questioning the coordinator's role and performance might be a costly price to pay should a party's grievances not be resolved before a trial court addresses the matter.

Tags: Counsel Fee Awards, Custody, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Mediation/Arbitration, North Caldwell Divorce Attorneys, PC, Parish v. Parish, Visitation/Parenting Time, West Orange Divorce Attorneys, caldwell divorce attorneys, enforcement of custody, enforcement of parenting time, parent coordinator, parenting coordinator, parenting time, visitation

Posted on December 11, 2010 by Robert A. Epstein

FEARS OF A SUPPORTED SPOUSE - MAINTAINING THE "STATUS QUO" DURING A DIVORCE PROCEEDING

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.

It is those hardball tactics, however, that often create the protracted litigation sought to be avoided. New Jersey's support statutes and case law dictate that the "status quo" lived during the marriage is to be maintained during the divorce process. This does not only mean that the supporting spouse will continue to contribute as he did during the marriage. Insurances and beneficiaries on assets will be maintained, and commonly, restraints on assets will be imposed to prevent a sudden transfer or spending of money. In addition, the supported spouse will often need counsel fees to litigate on an "even playing field" with the supporting spouse to avoid the coercive situation I described above.

Case Information Statements play a critical role in resolving these situations, whether by amicable settlement or as part of what is called a motion for pendente lite support (support during the proceedings). The Case Information Statement or "CIS" must be filed by each party early on after the filing of a Complaint for Divorce. It contains a section known as Part D, under which there are three Schedules - A, B and C. These schedules require the party to fill in all expenses on a monthly basis as to the marital lifestyle, as well as the person's current lifestyle, including fixed costs (such as the mortgage and utilities) and miscellaneous expenses that come as part of everyday life - even down to hair care and dry cleaning.

The task of completing the CIS can be daunting, but it is a pivotal component to resolving any pendente lite support issues because it aids in demonstrating how much support you will need as the supported spouse during the divorce proceedings (as well as assist in litigating long-term financial issues beyond the proceeding). Inevitably, even though the CIS is signed under oath, the parties will almost always have contrasting lifestyle expenses, often with the supported spouse having a higher lifestyle than that set forth by the supporting spouse. From there, whether the issues will resolve amicably without having to file a motion depends on the parties, the lawyers, and a given set of facts.

If the matter does not resolve amicably, the supported spouse is generally left with no choice but to file a motion to have a court address and resolve the issues. It can safely be said that such a motion is often the most important one that will be filed in a given case. In the client's eyes, filing a motion is a daunting task, as the client has to evaluate whether they want to proceed in such a fashion, spend the money to have counsel prepare and argue the motion - all without knowing what she will end up once the matter is in the hands of a trial judge. Plus, the other spouse will almost always not merely oppose the motion, but file for relief of his own, such as a set parenting time schedule. The trial judge will read certifications from each party containing various allegations and exhibits that may be difficult for the parties to see on paper as the life stories has been laid bare for the court. It is then up to the court, after hearing oral argument from the lawyers, to make findings of fact and decisions after oral argument.

What will the ultimate result be? Your legal counsel will hopefully have advised you in advance as to what may or may not happen. Whether the trial judge believes your certified statements as to the marital lifestyle and your needs (as well as those of the children) to continue maintaining the "status quo" during the divorce proceeding cannot be predicted.

As this is one of the most important, if not the most important motion filed during the proceeding, a client must ensure that they have retained counsel capable of understanding the issues, what to ask for, how to present your case, and, oftentimes, demonstrating an empathy for your position. The mechanisms in place that I have described above exist to protect the supported spouse and eliminate or reduce the fear experienced when litigating in what may feel like a difficult position from the outset.

Tags: Alimony, CIS, Case Information Statement, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, Roseland Divorce Attorneys, West Caldwell Divorce Attorneys, caldwell divorce attorneys, pendente lite motions, pendente lite support, status quo, support

Posted on October 23, 2010 by Robert A. Epstein

DIVISION OF RETIREMENT ASSETS - WHAT IS FAIR AND EQUITABLE?

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.

The facts of relevance are relatively sparse - the parties were married in 1989, separated in December 2004 and divorced in April 2007. On March 15, 2007, a final Judgment of Divorce was placed on the record, incorporating an oral property settlement agreement. The agreement included, in part, that the parties would equally share their retirement and pension accounts. The Judgment included language stating that the accounts would be "evaluated" as of December 15, 2004, "or as close to that date as possible."

Post-judgment litigation followed regarding various equitable distribution provisions of their agreement. In October 2008, following a plenary hearing, the trial court Ordered that the parties obtain an expert appraisal of the retirement assets to determine a proper value for distribution. A little less than a year later, the husband filed a motion asking that the trial court set his share of the wife's retirement accounts at approximately $51,000 and that a QDRO be prepared providing him with that sum from the wife's "AIG VALIC" account. The trial court granted the husband's motion, holding that the value as of December 15, 2004 entitled the husband to the $51,000 sought.

In reversing and remanding the trial court's decision, the Appellate Division noted first and foremost that the parties' agreement did not set a date of distribution of the accounts, and also critically did not indicate which party would bear the risk of any diminution in value of the accounts post-December 2004. The wife argued that providing the husband with the $51,000 distribution would be entirely inequitable because the value of her AIG account had decreased substantially due to the down economy, thereby leaving her with a far lesser share of the retirement assets should the decision be upheld.

While the Appellate Division agreed that December 2004 was the appropriate date for valuation of the retirement accounts, it was not equitable for the husband to receive a 50% share based on the 2004 value five years later because any change in value required consideration. Since the agreement was deemed by the Appellate Division to be, at best, ambiguous as to which party would bear the risk (if not both of them) of any decrease in value, and neither party offered evidence as to their respective intents in entering into the agreement, the Appellate Division was required to interpret the language of the agreement "in the most reasonable and fair manner" in light of the parties' equal bargaining power.

From the standpoint of fairness/reasonableness, the Appellate Division concluded that the negative result of the husband's decision to wait for five years to move for entry of a QDRO, as well as a lack of evidence that the wife unreasonably delayed such entry (since the parties reasonably disputed the values at issue), fell upon him. The Appellate Division, therefore, reversed and remanded for an expert to determine the cash value of the husband's share and what amount he could withdraw from the wife's account, using the December 2004 value and evaluating subsequent change due to market impact.

While it is critical that QDROs be timely prepared and entered, the real moral of the story here is that one party should not be made to suffer the inequity sought by the other party where the agreement does not provide a complete picture and the agreement, in the first place, was designed with fairness in mind.

EDITOR'S NOTE: IF PARTIES ACTUALLY INTEND ON DIVIDING A SPECIFIC DOLLAR AMOUNT AND/OR NOT ACCOUNTING FOR INCREASES/DECREASES IN ACCOUNT VALUES DUE TO MARKET FORCES BETWEEN THE VALUATION DATE AND ULTIMATE DIVISION OF THE ACCOUNTS, THEY SHOULD SAY SO. IN THIS CASE, BY USING A FIXED DATE, ONE PARTY RECEIVED A WINDFALL WHICH WAS OBVIOUSLY UNFAIR. ERIC S. SOLOTOFF

Tags: Equitable Distribution, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Livingston Divorce Attorneys, North Caldwell Divorce Attorneys, QDRO, Qualified Domestic Relations Order, Roseland Divorce Attorneys, West Caldwell Divorce Attorneys, division of retirement assets, market forces

Posted on August 19, 2010 by Robert A. Epstein

A BUSY WEEK FOR CHANGED CIRCUMSTANCES CONTINUES

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.

Tags: Alimony, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Lepis, Livingston Divorce Attorneys, Millburn Divorce Attorneys, West Orange Divorce Attorneys, caldwell divorce attorneys, changed circumstances, modification of alimony, plenary hearing

Posted on August 4, 2010 by Robert A. Epstein

CALIFORNIA'S "PROP 8" STRUCK DOWN BY FEDERAL COURT

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.

Tags: Civil Unions and Domestic Partnerships, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, Roseland Divorce Attorneys, West Caldwell Divorce Attorneys, caldwell divorce attorneys, california, civil unions, domestic partnership, prop 8, same-sex marriage

Posted on April 4, 2010 by Robert A. Epstein

STAR LEDGER ADDRESSES THE ISSUE OF SOCIAL NETWORKING AND DIVORCE

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

Tags: Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, Social networking, West Caldwell Divorce Attorneys, caldwell divorce attorneys, electronic evidence, emails, evidence, facebook, myspace, other, text messages, twitter

Posted on March 15, 2010 by Robert A. Epstein

SHORT SALE FOR CASH? AGGRESSIVE PLAN MAY HELP DIVORCING COUPLES

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.

Tags: Equitable Distribution, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, West Caldwell Divorce Attorneys, West Orange Divorce Attorneys, caldwell divorce attorneys, equitable distribution of marital home, short sales

Posted on February 21, 2010 by Robert A. Epstein

BEYOND STATE LINES - THE EXPANSIVE REACH OF THE PREVENTION OF DOMESTIC VIOLENCE ACT

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.

Tags: Bellville Divorce Attorneys, Domestic Violence, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, Prevention of Domestic Violence Act, West Caldwell Divorce Attorneys, jurisdiction, reyes, shah

Posted on February 13, 2010 by Sandra C. Fava

CHILD CUSTODY, ALIMONY & PRO SE LITIGANTS

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.

This type of appeal is quite common in family law and like many others, the decision can provide insight and guidance on how to help clients litigate their cases in the future. For instance in R.K.B. v. C.W.B., CWB alleged that there was change of circumstance relating to custody of the parties child. CWB represented, among other things, that because it had been four years since the trial court had determined custody that there was a change of circumstance. The Appellate Division found that mere passage of time and change of the child’s age is not enough to find a change of circumstance or warrant a plenary hearing. (There is other case law out there that says the exact opposite with regard to child support.)

CWB also argued that his child wanted to live with him, as opposed to his mother. Although this may have been true, the trial judge failed to entertain this argument because it was not something CWB could testify to because it could not be supported by “competent, credible evidence.” While the right to appeal exists for all litigants, knowing how to properly file and argue the legal issues in an appeal is an entirely different story.

Tags: Alimony, Bloomfield DIvorce Attorneys, Custody, Divorce, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Roseland Divorce Attorneys, Verona Divorce Attorneys, caldwell divorce attorneys, changed circumstances, passage of time

Posted on February 9, 2010 by Sandra C. Fava

Due Process vs. Final Restraining Order

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.

In a recent unpublished decision, M.C.B. v. Victoria Vartanian, decided February 5, 2010, Appellate Division, Victoria Vartanian allegedly harassed and threatened her ex-boyfriend M.C.B. M.C.B. contacted the police and had a judge issue a TRO. The TRO was served upon Ms. Vartanian, but only one day before the FRO hearing. The following day, at the FRO hearing the judge failed to advise Ms. Vartanian that: (1) there were consequences associated with the issuance of the FRO; (2) she had the right to counsel; (3) had the right to seek an adjournment to find counsel; and (4) had the right to subpoena witnesses and generally prepare for the hearing. As a result, notwithstanding the trial judge granted the FRO, the Appellate Division ordered a new hearing because Ms. Vartanian was not afforded the minimum requirements of due process (a right guaranteed by the Constitution).

Every individual has a right to protect their Constitutional rights, even when they are accused of domestic violence. While I am a staunch opponent of domestic violence, the issuance of an FRO can have long-lasting implications on the alleged abuser. If going to be issued, it should be after due process is granted.

Tags: Bloomfield DIvorce Attorneys, Cedar Grove Divorce Attorneys, Domestic Violence, Essex County DIvorce Attorneys, FRO, Fairfield Divorce Attorneys, Prevention of Domestic Violence Act, TRO, caldwell divorce attorneys, due process

Posted on January 19, 2010 by Robert A. Epstein

UNAMBIGUOUS LANGUAGE IN SETTLEMENT AGREEMENT CONTROLS OUTCOME

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.

Tags: Enforcing a Written Divorce Agreement, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, North Caldwell Divorce Attorneys, Property Settlement Agreements, QDRO, West Orange Divorce Attorneys, caldwell divorce attorneys, contract, parol evidence, property settlement agreement

Posted on December 30, 2009 by Robert A. Epstein

GOLDMAN SAGA CONTINUES

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

Tags: Bellville Divorce Attorneys, Brazil, Custody, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Hague Convention, Moriarty v. Bradt, Troxel v. Granville, Verona Divorce Attorneys, West Orange Divorce Attorneys, caldwell divorce attorneys, goldman, grandparents visitation, international custody

Posted on December 18, 2009 by Robert A. Epstein

SEAN GOLDMAN'S RETURN TO U.S. CLEARED BY BRAZIL'S SUPREME COURT

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.

Tags: Custody, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Hague Convention, North Caldwell Divorce Attorneys, West Caldwell Divorce Attorneys, goldman, international custody, treaty

Posted on December 15, 2009 by Sandra C. Fava

MODIFICATION OF CHILD SUPPORT- WHEN TO FILE

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.

In April 2008, Mr. Good filed an application with the court to increase child support payments based on an imputed income to Ms. Nedza of $85,000/year plus $25,000 in subsidized lifestyle (free apartment, Jaguar, vacations, etc.). Mr. Good sought the payments to be retroactive to January 2006 because Ms. Nedza’s income was “erroneously” fixed at $25,000/year as a direct result of her misrepresentations in 2006. Mr. Good also sought child support arrears retroactive to July 2004 based on Ms. Nedza’s misrepresentations.

The judge found that Mr. Good’s motion was untimely under Rule 4:50-1, which allows orders to be vacated or modified if there is mistake, fraud, or newly discovered evidence. But the motion must be filed within 1 year of the entry of the order pursuant to Court Rules. In this case, the judge found not only that it was more than one year, but more importantly, that Mr. Good was aware of the alleged misrepresentations in 2006, prior to entering into the January 2006 Consent Order. Because Mr. Good was aware of the alleged misrepresentations in 2006, had taken discovery, had the opportunity for a plenary hearing, and then still entered into a Consent Order, he could not attempt to re-litigate an old issue. The judge did order a recalculation of child support obligations as of January 2008 because there was a “change of circumstance” in the parties' income since January 2006, but would not assess arrears.

This case is a great example of what can occur if a party: (1) does not seek to enforce their rights in a timely manner; and (2) enters into a Consent Order prematurely. It can be vital to act quickly when new information becomes available and not to settle on incomplete discovery. Without knowing, future rights can be impacted. This is not to say that where there is fraud or misrepresentation courts will not overturn or vacate prior decisions or Orders. In those cases the burden of proof rests on the party making the allegations. While many litigants are anxious to settle matters quickly or as cost efficiently as possible, sometimes rushing to do so can negatively affect your rights under the law. Just as with most other things in life, having all the information is necessary to making an informed decision.

Tags: Bloomfield DIvorce Attorneys, Child Support, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Lepis, Maplewood Divorce Attorneys, Roseland Divorce Attorneys, West Orange Divorce Attorneys, modification of child support

Posted on December 10, 2009 by Robert A. Epstein

Modifying a Custody and Parenting Time Agreement

During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time. By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be. Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided.

However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be. He or she wants to change the agreement or simple rescind on its terms. We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.

The question then becomes, can they change the schedule so easily if they want to? The simple answer is no. A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.

The Appellate Division just recently addressed this issue in Dukes v. Fritz, where the father sought to essentially undo the custody and parenting time agreement a mere 2 days after the trial court accepted what was entered into by the parties during mediation. The father's stated basis for doing so was that the arrangement was "not the best, or most fair arrangements for me or for my children." He also relied on the fact that he lacked housing when the agreement was entered and at the time of trial he had a fully renovated home. Despite his arguments, however, the Appellate Division affirmed the trial court's conclusion that the father had simply changed his mind and no longer wanted to follow the arrangement that he and the mother had agreed to.

The father's attempt to back away from the agreement in Fritz is all too common, and such applications to modify often result in legal fees that could otherwise be avoided if the parties would simply stick by what they agreed to. As shown here, the standard for modification of an agreement is more than merely one party changing his or her mind, which is why dad was denied in this instance. Rather, just as with support issues, there must be a showing of a change of circumstances.

Tags: Custody, Fairfield Divorce Attorneys, Modification, Pompton Lakes Divorce Attorneys, Totowa Divorce Attorneys, Visitation/Parenting Time, agreement, parenting time, passaic county divorce attorney, wayne divorce attorneys

Posted on December 3, 2009 by Sandra C. Fava

Will California Ban Divorce? Will New Jersey ban Same -Sex Civil Unions?

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?

Often opponents of same-sex marriage cite the sanctity of marriage as the reason same-sex couples should not be allowed to marry. On December 14, 2006, the New Jersey Legislature passed the Civil Union Act, providing for civil unions, which was signed into law by Governor Jon Corzine on December 21, 2006 and came into effect on February 19, 2007. Same-sex couples who enter into a civil union are provided almost all of the rights granted to married couples under New Jersey state law. However, under the provisions of the federal Defense of Marriage Act or DOMA, same-sex couples in marriages, civil unions, or domestic partnerships do not have any right or entitlement to the 1,138 rights that a married couple has under federal law.

In New Jersey, Governor Jon Corzine has stated that he would sign a bill legalizing same-sex marriage if it comes to his desk before he leaves office in January. While Governor-elect, Christopher Christie said he would support a New Jersey constitutional amendment, similar to Proposition 8, that would ban same-sex civil unions.

In a study released on November 25, 2009 by Quinnipiac University, New Jersey voters now oppose a law that would allow same-sex couples to marry by a slim margin of 49 – 46%. This reverses the 49 - 43% support for same-sex marriage in an April 23, 2009 survey by the independent Quinnipiac University. The poll taken by the university shows some interesting trends in who are the strongest supporters of same-sex marriage: Women support same-sex marriage 53 – 41%, while men oppose it 57 – 38%; Democrats support same-sex marriage 60 – 34%; Independents support same-sex marriage 49 – 45%; Republicans are against same-sex marriage 69- 25%; White voters split 49 - 47 %, while African -American voters oppose the measure 61 - 28 %.

The legalization of same-sex marriages is certainly a heated debate with proponents on both sides. But does California’s satirical proposition to ban divorce change your opinion? Does the State have the right to regulate who gets married – or gets divorced? If the State can tell you who you can and can’t marry – why shouldn’t they be able to tell who you can and can’t divorce? And will New Jersey’s next governor enact New Jersey’s own Proposition 8? Its obvious that from the West Coast all the way to here in New Jersey, the same-sex marriage debate will continue………….

Tags: Cedar Grove Divorce Attorneys, Civil Unions and Domestic Partnerships, Divorce, Essex County DIvorce Attorneys, Fairfield Divorce Attorneys, Maplewood Divorce Attorneys, Nutley Divorce Attorneys, West Orange Divorce Attorneys, civil unions, same sex marriage

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