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

A recent case was filed concerning a woman who entered into a Marital Settlement Agreement with her then husband in which the marital home was not to be sold immediately, but provided for how the proceeds would be distributed when it was. The Husband, however, was in poor health, and the agreement did not provide for the possible event of his death prior to sale of the home. In fact, the husband died prior to the sale of the house, but after the limited divorce that the couple had obtained .  His interest in the house went to his estate rather than to his former wife as she had anticipated. The former wife was then forced to purchase the half interest from the estate in order to retain the home, something that was not anticipated by her, and cost her a significant amount of money.

I am sure that the former wife assumed that the deed to her home contained a right of survivorship in the event of her former husband’s death. Instead,  the property was most likely titled in such a way that the parties owned the property as tenants by the entirety, which means that they owned as husband and wife, and upon the death of one spouse  title of the property would go to other, assuming they were still married. Upon the divorce of parties to a tenancy by the entirety,  however, the title changes to what is known as a tenancy in common, which means that they each had a one half interest in the property which would then go to their beneficiaries upon death unless there is a specified right of survivorship.

The moral of this story? Make sure your lawyer has a copy of your deed as well as any other important documents.   If you do not have one, make sure that a title search is conducted on the property.   It is critical that a lawyer understand how property is held between spouses and/or other co-owners. Many times, incorrect assumptions are made about these kinds of issues and the results can be expensive. My motto is, I can never have to much information from my client.

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When lawyers say you should never represent yourself, even in so called, “simple” cases,  they are often accused of being greedy, driving up fees, and unwilling to acknowledge that there are smart people out there that are capable of working out the terms of a settlement.  I have recently been involved in a case which has been really bothering me. It is the perfect example of an intelligent, thoughtful, detailed oriented individual who believed he knew what he was agreeing to twenty three years ago when he was divorced and now finds himself in a position where a trial court has interpreted his divorce settlement agreement far differently than he did back then.

 In my case, my client did not have an attorney at the time that he was divorced .  He and his wife were able to reach an amicable agreement as to the terms of their divorce and she hired a layer to draft the agreement and put the divorce through.  When they got the issue of my client’s retirement benefits, he agreed to language which he thought would limit his ex-wife’s share of his retirement. Unfortunately, he did not have his own counsel to inform him of what is often referred to the “marital foundation” theory, which essentially means that as a result of the foundation that is built in the early part of employment ( which usually occurs during the marriage), a former spouse will be entitled to the benefit of  some post marital efforts.

Usually, a former spouse’s entitlement to a retiree’s pension is calculated by use of what is known as a “coverture” fraction. In its simplest form, the coverture fraction is one in which the numerator is the number of years or months that the employee worked during the marriage and the denominator is the total number of months or years worked. That fraction is then multiplied by the percentage of which the former spouse is entitled ( usually 50%). The resulting number is the actual percentage of the pension payment that the former spouse will receive.  This fraction is used for several reasons. First, as I have previously stated, the theory is that during the marriage, a foundation is built which allows the working spouse to advance in later years. Second is the reality that this is a mathematical way to segregate out the marital portion. It is not, however, a perfect science given the way that the majority of pensions are calculated.  The end result is often that the former spouse shares to some extent in a pension benefit that is calculated based upon a higher salary which was earned after the divorce.

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When I see a new client, he or she often spends much time telling me about all of the offenses that his or her spouse has committed throughout the marriage. Couples divorce for many reasons, and when it comes to family cases, no two cases are alike.  Yet at the end of the day, the issue of why a couple is getting a divorce may not have a significant impact on the case and indeed, can often fan the flames of animosity. Within the last several years, New Jersey became one of many states which allow a divorce based upon irreconcilable differences, which is to say that neither party is at fault; it is just that the marriage is no longer viable. This change was applauded by the legal community because we know that a complaint which contains allegations of a spouse's fault for the break up often make a bad situation worse.  Prior to that, to proceed on a no-fault divorce, the parties had to be separated for 18 months (that ground still remains to be used where applicable).

New clients often initially want to file for divorce under the ground of extreme cruelty, which is also a cause of action allowed under our laws, and which essentially alleges that the marriage has failed as a direct result of the bad actions of one spouse.  Certainly, there are instances in which the behaviors of a spouse can be relevant to issues of custody. For example, a situation in which there is domestic violence, or substance abuse can have a profound effect on children and be important when addressing the children’s best interests. Also, in the rare instance when a spouse’s actions have a result of dissipating assets, or causing actual harm to the spouse or the assets of the marriage, this may have an effect on equitable distribution .  Fault essentially has no place in the calculation of support.

For the vast majority of cases, the reasons that a couple divorces will have little or no effect on the distribution of assets or the outcome of a custody dispute. When there is a custody dispute, the evaluator will speak to both parents as well as any other individuals who have relevant information. The parents will be able to inform the evaluator as well as the judge later on of any marital behaviors that may influence a custody and parenting time determination.   The allegations, or lack thereof, in a divorce complaint, does not preclude a litigant from expressing concerns in a custody case.  A judge and evaluator will hear all relevant facts.

In the case of equitable distribution, it is a rare occurrence that the reasons for the divorce will have any effect on how the assets are distributed between the litigants. So why fan the flames?   In today’s environment, couples want to work with the counsel in order to resolve their cases ( when possible) in an expeditious fashion. They want to maximize the marital estate in order to preserve the assets which have taken such a beating this past two years. So unless it becomes truly relevant, and there is a distinct advantage, why file a complaint in which there are allegations of extreme cruelty?    

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When a client comes in for a first meeting for a divorce consultation, it is often when things at home has reached a crisis whether it be financial, or something having to do with the children. Although a divorce, start to finish, can last more than a year in the Courts, there are remedies available to assist  litigants with more immediate issues that come up. 

After an initial complaint for divorce is filed and served, litigants can proceed to Court on a Motion for an Order regarding those issues which need to be resolved pending the end of the case.  These may include interim custody, spousal and child support, restraints against asset dissipation, insurance coverage, payment of counsel fees, etc. In divorce cases, this is known as a “pendente lite Motion.” Some cases do not require pendente lite Motions while other cases may require numerous pendente lite Motions. A Motion is made up of Certifications (the same thing as an Affidavit) from you and the opposing party and oral argument by your attorney and the opposing attorney; sometimes, legal briefs are also filed with the Motion. Often, your attorney will have very little time within which to respond to a Motion or Cross-Motion filed by the other side. After these papers have been filed, the case is usually then heard by a judge on a Friday at what is known as “oral argument.” This is when the attorneys go to Court to argue the motion, but the litigant will not testify. By their very nature, pendente lite motions are not an exact science as they are usually filed before there has been substantial discovery of all the information necessary to make a final decision. However, they are a way to obtain relief from the Court in a short time period and the issues can be revisited when appropriate as information comes through.
 

If a true emergency exists, your attorney may recommend the filing of an “Order to Show Cause” which can be heard by the Court the same day as it is filed; however, there will thereafter be a “return date” for another oral argument to give the opposing party a chance to file papers and argue their side.  

It bears mentioning of course, that not all cases require a pendente lite Motion. In some cases, the attorneys can work out the issues between themselves with their clients’ assistance. It is often better to reach an amicable resolution of your issues than to file a Motion, as it is generally less costly both in terms of fees and emotions

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Yesterday, my partner, Apple Sulit-Perelejo wrote about the case of Maria Jose Carrascosa, who  was found guilty of eight counts of interference with custody and one count of contempt of court. Carrascosa had taken her daughter, Victoria, to Spain in 2005 while involved in a custody dispute with her ex-husband. A family court judge in August 2006 then granted sole custody of the girl to Innes and ordered Carrascosa to bring her back to New Jersey within 10 days. She failed to comply though and was arrested in November 2006 for contempt of court. She has remained in jail since then and has since been charged with the more serious, criminal offence of interference of custody. She can receive a sentence of up to ten years.   Yet, as Apple pointed out, the child’s father does not have custody due to a jurisdictional dispute between the United States and Spain, and the child is with neither parent.

This case brings to mind what was truly one of the most upsetting times in my career as a family lawyer.  While I have been involved in several international parental kidnapping cases, approximately ten years ago, I represented a father of a teen age son whose mother absconded with the child to South America, to a country which is not a signatory to the Hague Convention, the international treaty which deals with these types of situations.  The parents had shared parenting time, and during a period during which the mother had the child, they left the country and fled to the jungles of South America. Many, many months later, after Herculean efforts by investigators,  the United States and the consulates of several countries through which the mother had passed, the pair was located and returned to my client. Sadly, while in South America, the child had been mistreated by the mother, sent to the jungles to work and returned with various emotional issues. Fast forward several years later, and luckily, the teenager had completed therapy, was in college and had reunited with his family. His mother was sentenced to a prison term for her actions.

While these types of extreme actions are rare, they are real, and children are injured both emotionally, and in some cases physically.  It is always difficult when faced with a situation in which your client believes that a child may be of risk to be kidnapped by the other parent.  Angry parents often say things in the context of custody dispute in order to disparage the other parent. Yet in some cases, the fear is warranted, and appropriate steps must be taken in order to protect the child in question. The National Center for Missing and Exploited Children (www.missingkids.com), has resources for parents. Additionally, there are steps that parents can takew ith the assistance of their counsel in the context of their divorce or custody proceedings in order to prevent a parental abduction, or at least be prepared in the event it happens.

The biggest concern, of course, is the effect on the children are the victims of these situations. Parental abductions represent parental alienation at its worst, and the victim is always the child.  

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