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

 An interesting part of the practice of family law are the rare issues; the one that may not walk through the door every day.  Grandparent visitation cases oftentimes fit into this category.  They nearly always prove interesting, regardless of whether you represent the grandparent(s) or the parent(s), and they can quickly become complex and difficult (both emotionally and legally). 

The NJ Appellate Court issued an unpublished decision in the matter of L.A.B. v. B.L.P. and C.J.B. affirming and reminding both litigants and practitioners of the standard utilized by courts when asked to make a determination of whether or not a grandparent has a legal right to visitation with a grandchild if the parents so oppose the request.  Unlike contested custody matters between two parents where the standard the court must use is “best interest of the child”, our Supreme Court has determined that in the cases of grandparent visitation, it is the grandparent who must prove, by a preponderance of the evidence, that not having visitation with him/her/them would cause harm to the health or welfare of the child.  Not having the visitation would cause significant harm to the child, which the court must prevent as is its job as parens patraie. 

The statute that governs grandparent visitation is known as the Grandparents and Siblings Visitation Statute N.J.S.A. 9:2-7.1.  It requires that grandparents who seek visitation plead and show the potential for particularized harm to the child resulting from the lack of grandparent visitation.  The spirit of the statute was further clarified in the precedential NJ Supreme Court decision of Moriarty v. Bradt, 177 NJ 84 (2003).  Simply pointing out the flaws of the child’s biological parent(s) is not enough.   The harm to the child must be directly caused by the lack of grandparent visitation and can be remedied by having the grandparent visitation.  The harm must also be to the child and not to the grandparent.  The example illustrated in Moriarty, where the court found grandparent visitation appropriate, where the expert opined that visitation was needed “to protect the children from the harm that would befall them if they were alienated from their grandparents,….which would cause the children to believe essentially that half of them, that their mother’s half is evil, is damaged, is bad, and that this would cause self-esteem problems.”  This was a particularized, specific harm that would befall the children if the grandparents were not allowed visitation.  There was a special need for continued contact.  A close and loving relationship with a  grandchild is not enough. Neither is the loss of future memories.

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Yesterday, I blogged on the proposed alimony reform legislation in New Jersey.  At the end of that post, I posited the following questions.  Is this really a radical change, or in many respects, does it simply codify what is often done in practice anyway? Will it really take away advocacy when circumstances so require?

Aside from removing the term "permanent alimony" and perhaps sickening reaction in causes in some people, does the proposed legislation really do more than codify the case law or what was done in practice, in many respects.  Remember, is "permanent alimony" really permanent now anyway?  Can't people seek to retire already and isn't retirement a change of circumstances?  Don't people already negotiate, when appropriate, limited duration alimony when people are divorcing close to retirement age, as opposed to buying a second litigation to occur a few years later? 

The following are some other random thoughts, in no particular order and of no particular importance. 

1)  Is "indefinite alimony" a nicer term for "permanent alimony"

2)  While certainly possible and appropriate in many circumstances under existing law for marriages of less than 20 years, permanent alimony was infrequently given in marriages less than 20 years after the limited duration alimony statute was enacted. In fact, I heard someone on a panel at the State Bar Convention last year state that 20 years was sort of a magic number ensuring permanent alimony.

3)   The concept of imputing income to someone that is unemployed or underemployed essentially  already exists in the case law and child support guidelines, and thus, really is not new.

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There are many cases that say that the settlement of litigation ranks high in the public policy of this state,  As such, there are many cases that say that an agreement can be enforced, even if it is not reduced to a writing, if the major terms have been agreed to.  As my client learned in Brawer v. Brawer, the unexpressed intention not to be bound is irrelevant.  There is no place in the law for second thoughts where the parties have expressed their agreement.  In fact, in a case called Bistricer, the judge said:

… the proposition that a case is not settled until the last “i” is dotted and the last “t” is crossed on a written settlement agreement carries the germ of much mischief. A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a “framework” has been established, wiggle out of that framework by creating a flood of new issues and questions.

Just as you can't wiggle out of a settlement, similarly, you cannot appeal a settlement.  This issue reared its head in the case of Courboin v. Courboin, an unreported (non-precedential) opinion decided on February 21, 2013.  In this case, after two days of trial, the parties settled and put their settlement on the record. The husband testified that he agreed to be bound.  As part of that settlement, the home was to be sold.

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Very often, clients ask us how old their child has to be before he or she can choose which parent they want to live with.  The answer is not a simple one.  In most cases, absent undue influence or improper involvement of a child in the matter (or worse yet, alienation), once a child is a teenager, their wishes, while not determinative, should at least be considered.  Again, the age and weight given a teenagers wishes varies from judge to judge.

In fact, I tried a case a few years ago where it was undisputed that all of the children said that they wanted to spend more time with the father.  However, it was also undisputed that the father repeatedly improperly involved the children in the matter, or worse, and this, it was also undisputed that additional time with the father was not in the children's best interests.  As a result, his request for more time was denied.  About two years later, he tried to get more time again.  The motion judge (now a second judge hearing this issue) denied it because the submissions confirmed that the father was still improperly involving the children.  Two months later, with no new facts, and no evidence that more time was in the child's best interests, a third judge let the 17 year old go live with the father because it was this judge's belief that, unequivocally, a teenager can choose where they want to live.

This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013.  In this post-judgment case, the Appellate Division repeated the concept that the law requires that a teenager's (here a 15 year old) preference be considered absent evidence that the child was overly influenced by the parent with who she wanted to live.

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Every month, I get an email with entitled Case Update from the ABA Family Law section which contains blurbs from interesting decisions throughout the country.  This week, I got the December 2012 update and had to take two steps back when I read the following blurb:

Trial court may, in an initial custody determination, consider a parent's sexual conduct as it relates to that parent's character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church.

Wow!!!  Mind you, the case is from Alabama, not New Jersey.  In New Jersey, I doubt very much that conduct which is not detrimental to the child would be considered, whether it is gambling (and I actually had a case where a father, a bookie in his spare time, took his kids when he was meeting his bookie), use of pornography, affairs, an affinity for S&M, etc. 

That said, the blurb appealed to my "prurient interests" and hooked me in so I had to read the case.  I figured that there must be some crazy conduct going on.  I figured. at the very least, I may have a good story to tell.

Wrong!  The parties were divorced in 2007 but the ancillary issues, including custody were bifurcated.  The custody hearing took place in 2010.  What was the crazy sexual conduct that impacted the custody determination, you then ask.  The mother was living with her fiance',  The relationship, by the way, did not become sexual until 2009.  By the way, part of the reason for the delay in addressing custody was that the issue was put on the back burner in the divorce decree until the conclusion of criminal proceedings against the father for the alleged sexual abuse of the mother's child from a prior relationship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy.  The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court. 

In this case, the defendant's discovery of the victim's infidelity lead to an act of domestic violence.  The victim, however, wanted to remain in and work on the marriage.  The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children.  The parties later reconciled and the victim returned to the house.  However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant.  At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children."  The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home. 

The victim appealed and the Appellate Division reversed, holding:

The trial court's findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant's discovery of his wife's extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court's award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.

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An issue that has vexed us in the past is whether the rules enacted by the Supreme Court regarding parent coordinators were to be applied to all parent coordinators appointed by the Court.  In 2006, the New Jersey Supreme Court implemented a pilot program in four vicinages (Bergen, Morris/Sussex, Union and Middlesex) for parenting coordinators.  The link above provides the Supreme Court mandated guidelines and procedures which have also been discussed on this blog previously.

The problem arose when a parenting coordinator was appointed outside of one of those vicinages.  To my chagrin, I have heard judges state and lawyers argue that since their vicinage was outside of the pilot program, they did not have to follow the guidelines.  This was often in the context of a court improperly vesting a parent coordinator with authority which approached or could be argued to be an abdication of the judicial role. 

Finally, we have an answer to this question in the reported (precedential) case of Milne v. Goldenberg decided on September 12, 2012.  The case seems like a never ending, "war of the roses" type custody battle and also has some interesting discussion regarding the role of a Guardian ad Litem and procedures related thereto.  That said, the parent coordinate issue was addressed because the court appointed an attorney who was not on the court approved, pilot program parenting coordinator list. 

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Going through a divorce can be overwhelming – equitable distribution, visitation, alimony, child support, division of retirement accounts, where to live, re-entering the workforce.  All of these are important, long-lasting decisions.  But there is one thing that many people fail to consider during a divorce………..divorcing your credit reports.

Today, your credit report can have a significant impact on all aspects of your life - obtaining a credit card, getting qualified for a mortgage, car loans, a job, the interest rates you pay, car insurance, life insurance.  Not having good credit can cost you thousands of dollars.  That is why it is important to address your credit report, and the lines of credit that your spouse can access as early in the divorce process as possible.

The key to divorcing credit reports is understanding the difference in the way a court views debt versus the way credit companies view debt.  A court views debts as either marital debt or non-marital debt, and will divide it according to a variety of NJ statutory factors, which can be found here.  Credit companies view debt as either being joint or individual.  With joint debt, both spouses signed for the credit and both spouses are responsible for the debt. With individual debt, only one spouse signed for the debt, hence only one spouse is responsible for it. 

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April 17, 2012 is the 2011 tax filing deadline and it's quickly approaching. The Government does not care that you are going through potentially the most difficult time period in your life. Like the Godfather, the IRS wants its money. It does not want to hear excuses. It does not want to hear that you always filed jointly and now your soon-to-be ex-spouse will not sign the joint return, or provide their W-2, or disclose the income of the closely held business because they fear it will be used against them in the divorce process.

Filing your taxes can be difficult, especially if you owe money. Trying to file when going through a divorce can be especially difficult. That is why it is important to work with your attorney and a tax professional. There are many decisions to make when filing taxes during a divorce. First, you have to determine your filing status: married filing jointly, married filing separately, or head of household. If you decide to file jointly, make sure to be extra diligent. If your spouse prepares the returns, have your own tax professional review them to ensure that they are accurate. The IRS does not care that your spouse prepared or filed the taxes. If you sign the return, you can be held liable for misreporting.

If you decide to file married filing separately or head of household (if you qualify), the following determinations have to be made (and in some instances negotiated):

1. Who gets the mortgage interest deduction(s) and other itemized deductions?

2. Who gets to claim the child(ren)?

3. Can I deduct the temporary support?

4. Can I deduct my legal expenses for the temporary support?

5. Who gets to claim the Child Tax credit and the Household and Dependent Care credit?

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It is not unusual to use a three or five year average of someones income when calculating alimony and/or child support if their income fluctuates.  Why does income fluctuate?  Sometimes people earn commissions based upon sales which vary from year to year.  Sometimes the economy or other reasons dictate how much of a bonus they get.  Some times deferred compensation, when it vests and/or is cashed in, yields more in some years than in others.  There are many reasons why income can fluctuate.  As such, both the case law and child support guidelines advise that we should use an average when calculating support.

That said, is this always fair?  What do you do in cases where it is clear that the prior income wont be repeated?  That was the issue in the case of Harwelik v. Harwelik, an unreported Appellate Division opinion decided on December 19, 2011.  In this case, the husband's average income was about $300,000.  However, this included both short term bonuses that he was able to defer and long term bonuses that had a 3 year vesting period.  In July 2006, when the husband's employer, Verizon, sold most of its international assets, his title was downgraded from director to manager. As a result of the change, he was no longer eligible to receive long-term bonuses, although the bonuses previously
granted would still vest and be fully payable. In addition, as a manager, plaintiff could no longer defer the short-term bonuses he received after 2006.  When excluding this deferred compensation from the average income, it was substantially less.  That said, the trial court used the $300,000 average.

In a confusing opinion, the Appellate Division affirmed the use of an average but reversed the use of the $300,000 number because it included the deferred compensation that the husband no longer had, through no fault of his own.

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In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We've posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court's Orders denying Ms. Whyte's motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties' 2008 Property Settlement Agreement ("PSA").

The parties' 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal's Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal's parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.

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I have recently had a case where the other attorney would tell us one thing on the phone and another to the Court or in Court papers.  When called on this about face in court, the attorney made a weak denial before saying that it does not matter what he said and that it only matters what his client believes.  In this situation, the assertion was curious, if not comical, because at issue was the interpretation of a court order.

That said, was opposing counsel right?  I think that, in most cases, the answer is no.  More importantly, there is a sufficient body of law that what a lawyer says could possibly bind a client.  Of equal significance, if counsel relies on the representation of opposing counsel, only for opposing counsel to backtrack or lie about making the representation, the case will no doubt get more contentious, if not more expensive.  In addition, thereafter, perhaps all communications will have to be in writing so that there can be no backtracking, etc. Moreover, this type of conduct raises ethical concerns regarding duties of candor to the court and duties of fairness to the opposing party, to name a few.

Some situations where an attorney can bind a client are as follows.  If an attorney has authority to settle and makes a proposal or accepts an offer on behalf of a client, it may be possible to enforce that agreement.  If an attorney takes a position in court, the client may very well be stuck with that position. 

I have had situations where attorneys have made factual misrepresentations to a judge on the record at a motion or conference with the client sitting right next to them.  In these situations, I have ordered the transcript for use at trial.  During cross examination, I have asked the other party, if they were present, if they heard what was said, and if they concede it was incorrect.  I then ask them to confirm that they were sitting there yet they never corrected the misrepresentation that they knew was wrong.  In several trials, I have seen judges cite this to justify the finding that the party lacked credibility.

Family law cases are hard enough and emotionally charged enough that what we don't need is sharp and dishonest practices by the lawyers.  While bad for the system in general, this conduct also risks hurting their client's case.

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

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For those of you have have followed the continuum in New Jersey's palimony law, October has proven to be a busy month, with not one but two opinions.

Nearly one year ago, the NJ legislature passed law that, in sum, prohibited the enforcement of palimony agreements that have not been put in writing.  When the new law went into effect, we quickly blogged on the breaking news.  To check out that post, click here.

With the passage of N.J.S.A. 25:1-5(h) came many questions.  Attorneys and litigants wondered what would happen to those cases already pending before the court; what would happen to those who had valid claims for palimony under what had previously been the law in NJ but did not yet act?  Lots had an opinion, but really only time would tell.  Botis v. Estate of Kudrick, 421 N.J. Super, 107 (App. Div. 2011) provided some guidance, telling practitioners and litigants alike that the statute applied only to suits filed after its effective date.

On October 6, 2011, a Hudson County Superior Court judge upheld a non-written palimony agreement, finding overwhelming evidence that the parties "lived together, and had made a commitment to each other to support each other, to share with each other, and most of all, as is implicit in every agreement, to treat each other fairly and avoid harm to the other."

In the matter of Fernandes v. Arantes,  this same sex couple had been living together since 1996.  In 2005, after 11 years of living together in various locations all over the world, they bought a home in Jersey City, however only Arantes' name was on the deed (although Fernandes' was added later). The parties never married or entered a formal union but did exchange vows in an informal setting, shared expenses and investments, and supported each other financially, claimed Fernandes.

In April 2009, Arantes obtained a temporary restraining order against Fernandes.  The case was dismissed although a no-contact order was issued, which prevented Fernandes from accessing the Jersey City home.  On October 20, 2009, Fernandes filed a motion which sought access to the home to retrieve belongings and replacement of $80,000 Arantes allegedly withdrew from a joint bank account.  On February 15, 2011, an amended complaint was filed, alleging palimony and unjust enrichment.  In defense, Arantes claimed the relationship ended in 2001 and the parties only continued to live together for financial reasons.

After hearing testimony, the trial judge found that the relationship was that of a marital-type relationship.  Finding that "[p]arties who entered into these kinds of relationships usually do not record their understanding in specific legalese", the trial court awarded Fernandes' claim of palimony, although the amended complaint was filed after the passage of the statute.

As this is a trial court opinion, it is not binding on other courts.

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When negotiating the payment of child support, I discuss with my clients the implications of paying/receiving support through Probation.  One of the major implications of paying child support through Probation is the anticipation of a Cost of Living Adjustment, or COLA.

Any child support order paid through Probation that was issued after September 1, 1998 is subject to a COLA increase every two years.  At around the two year mark, Probation provides both parties with a notice of the increase.  The increase is based on the "average change in the Consumer Price Index for the Metropolitan statistical areas that encompass New Jersey and shall be compounded."  Although Probation will calculate the percentage increase for you, you can calculate it yourself to anticipate what's at stake:

1.  Visit the Bureau of Labor Statistics Website: http://www.bls.gov/cpi/

2.  At the bottom right of the screen, there is a "Regional Resources" tool.  Select your region.  If you live in any part of New Jersey other than Atlantic City, select New York.  If you live in Atlantic City, select Philadelphia.

3.  A table will appear, select the "more formatting" option.  Then select "12 month percent change".  Specify the 2 year range.  Select "annual data" for time period.  Finally, click on "Retrieve Data."  For example, the 2009 average change in the Consumer Price Index (CPI) was .4 and in 2010, it was 1.7.  Therefore, the total change was 2.1% for the 2 year period.  Considering this, a $100 per week obligation would be increased to $102.10 per week with the COLA. 

After receiving a COLA notice, the party paying child support has 30 days from the date of the notice mailing to contest the increase with Probation.  The increase may only be contested on the following grounds: (1) his/her income has not increased at a percentage at least equal to that rate; OR (2) the child support order already provides for an alternate method of periodic COLA adjustments.  After considering the objection, Probation will make a recommendation and notify the parties of the recommendation.  The party who is dissatisfied with Probation's determination may request a hearing before a Probation hearing officer (not a judge).  If either party is dissatisfied with the hearing officer's decision, that party may appeal to the family court judge.  In such circumstances, the family court judge shall consider all evidence presented, regardless of whether the evidence was presented to the hearing officer.  

The COLA increase was recently addressed by the Appellate Division in an unpublished opinion, Savini v. Triestman.  In this case, the father contested his 6.85% COLA, which would have increased his child support obligation by $218 per month, or $2,616 per year.  Probation agreed and determined that a COLA was "not warranted."  The mother requested a hearing, but the hearing officer ruled against her.  The mother appealed to a family court judge, claiming that the father was lying about his income.  The judge claimed she hadn't satisfied "her burden" of proving this and ruled against her. 

The Appellate Division in Savini disagreed, holding that the trial judge improperly held the mother to the father's burden.   Rather, the judge should have made specific findings as to the father's income before and during the COLA time-period.  Finally, the judge should have calculated whether any increase in the father's income was at least 6.85%. 

Considering the money at stake, it is important for a party to understand the procedure and be ready to use it if necessary. 

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We have previously blogged on the "rule of thumb", a dirty little secret used by judges and lawyers in New Jersey to come up with a "ball park" as to what alimony should be.  This "rule of thumb" does not take into account all of the statutory factors.  Rather, the formula simply subtracts the lower income (real or imputed) from the and multiplies the difference by a percentage.  I have been told that that percentage is 30% or one-third in the northern part of the state and 25% in the southern part.  Of course, judges really cannot use this formula and must make findings considering the law and all of the statutory factors which are:

(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
(5) The earning capacities, educational levels, vocational skills, and employability
of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to
enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or nonfinancial contributions to the marriage or
civil union by each party including contributions to the care and education of
the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable
distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by
that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant.

While these factors are supposed to be consider and the "rule of thumb" is not, we hear judge's recommending settlements using this rule of thumb all of the time.

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I had a case recently where we had a conference call with the judge during which time, a discrete issue holding up resolution of a larger issue was discussed.  The judge made a suggestion which I took down verbatim and drafted language which I thought would resolve the issue. The problem, the judge's suggestion was contrary to what the other litigant wanted.  So what appeared to happen is that his lawyer either did not accurately report what was said or "spun" it in a way to not accurately reflect what the judge said.

In another matter, resolution of financial issues were discussed in chambers with the judge.  As I was reporting to my client what the judge said, we heard the other lawyer, who was speaking way to loud given as close as he was, spinning a entirely different client because the truth was not something the client would have wanted to hear.

Aside from running up counsel fees, seeking clarification from the judge (or hoping that she/he will change her/his mind), what purpose does this serve?  Is saving face with a client better than being honest, if not brutally honest, about their prospects?

I have heard many clients say that they went to initial consultations with attorneys who promised the world to get the case, only to then fail to deliver.  Of course they failed to deliver if they were promising that which is contrary to the law, overreaching or unreasonable under the circumstances. 

While clients have a right to seek what they want, they need to hear what they can realistically expect so that they are not surprised if they don't get the result that they have hoped for.  There are parties that want to push the envelope, either because an issue is novel, or because they really want something but are willing to give up something else, and sometimes for un-pure reasons.  However, if they are fully informed of their chances, or what the judge is saying, or both, they will not be able to say,"you never told me." Moreover, it is better for a party to learn the truth as early as possible so that they can decide whether they really want to fight a losing fight or preserve their financial and emotional resources.

__________

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

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Last year, we published a post entitled He Who Hesitates (To Sell Former Marital Home) May Have Lost.  However, the Supreme Court disagreed in Sachau v. Sachau decided May 11, 2011.

In Sachau, the marital home was supposed to be sold on a triggering event, the emancipation of the youngest child, which in this case was in 1984.  The house wasn't sold then but in 1990, the wife began making inconsistent payments at inconsistent intervals to the husband through 2004 totalling almost $80000.  When the husband became unable to support himself, he filed a motion to compel the sale of the house in 2006.

Without getting into the legal steps it took to get to a hearing, the trial judge ultimately concluded that there was no agreement between the parties in respect of the valuation date and that the 1984 value of the home was $120,000 and that was the valued to be used.  As such, the husband's share was filed at  $144,915.62 (which included interest) and the wife's share was $417,472.64. The judge further determined that the wife would be credited for payments made. Moreover, the judge noted that the equities were in parity and that “the passage of time ha[d] not caused a change in position to the
detriment of [Barbara].” The husband appealed, and as noted in our prior post, the Appellate Division affirmed.

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Last week, the news reported the decision in the custody case involving Miami Heat guard, Dwyane Wade's, children, after one of the longest custody trials ever in Cook County.  Apparently, a large part of Mr. Wade's decision to seek sole custody of his children was allegations regarding his wife's alienating behavior.  In the decision issued by Judge Renee G. Goldfarb, the Judge held:

This court finds that (Siohvaughn Wade) has embarked on an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them.

We have previously blogged many times on issues regarding parental alienation.  Though I do not believe that it has yet occur ed, we discussed the movement to have "Parental Alienation Syndrome" included as a diagnoses in the new edition of the DSM. We have also discussed programs that deal with parental alienation as well as different cases addressing whether there can be tort liability for parental alienation.

What the Wade case shows is that when a parent embarks upon a course of conduct to alienate children from the other parent, and shows little desire, if not an utter inability to foster and encourage a relationship between the children and the other parent, that parent risks losing custody.  Parents divorce each other.  They don't divorce the children.  We cannot ignore the danger of harm to the children when a parent seeks to prevent or destroy the children's relationship with the other parent.  The research is clear that children need both parents in their life.  However, when a parent seeks to destroy the children's relationship with the other parent, they risk having their own time with the children limited in order to mitigate and/or prevent the opportunity for further damage being caused.

The results of parental alienation can be tragic.  It is encouraging to see a court take it seriously and spend sufficient time exploring the issue.

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Previously, I have blogged on the issue of domestic violence and the NJ Prevention Of Domestic Violence Act.  Our courts have carefully scrutinized this Act and its consequences, even determining whether and under what circumstances the issuance of a final restraining order can violate one's right to due process.  Unfortunately, the issue of domestic violence arises all too often in family courts.

The recently published Appellate Court decision of C.M.F. v. R.G.F. arose from an appeal after the trial court issued a final restraining order against an ex-husband.  The act of domestic violence in question was found to be an act of harassment committed against the ex-wife while at their child's sporting event.  The main allegation was that the ex-husband screamed and yelled obscenities and other unpleasantries aimed towards his ex-wife.

These parties had gone through a long and tumultuous divorce.  Ironically, in 2007 they agreed to parenting time arrangement for their children.  They'd each reside in the marital home on a 50/50 basis, with one party living in the home for 3 1/2 days/week with the children and leaving 1 hour before the other party arrived and then alternating.  This system seemed to work and avoided the parties having to see each other for quite some period of time.

In January 2009, after filing motions seeking to each have sole possession of the home with the children, an order was entered granting wife possession.  The husband was to continue with the same amount of parenting time but to take place out of the marital home.  On the day the order was received, wife text messaged husband to let him know what was ordered and to advise that she'd be taking their children to their basketball game and he could pick them up there.  She would also leave the children's overnight bag on the porch for husband's retrieval.  At some time later that evening, husband appeared at the home and a verbal altercation began between the parties.  Wife called the police who seemingly diffused the situation at that time.

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Being a divorced parent and attempting to relocate to another state can be a difficult proposition.  N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship.  Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).

In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation.  These parties were married for 13 years and had two children when they divorced in 2005.   The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey.  As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.

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Very often, we are confronted with situations where on spouse is self employed and the business pays certain personal expenses on behalf of one or both of the parties.  Often times, these expenses are wholly appropriate and would withstand IRS scrutiny.  Other times, there are excess perks or other personal expenses paid through the business that have no business purpose.  The practical effect is that these expenses are deducted as business expenses, and essentially taken as tax free income.  For purposes of the determination of the proper income to use for support purposes, as well as for business valuation calculations, these expenses are added back to income. While obviously inappropriate, some times we even encounter unreported income which also has to be added back for support and valuation purposes.

A bigger question/debate is once added back, should taxes being considered?  Put another way, if the person was not paying taxes on this aspect of his/her income. should the income be reduced by taxes or should it be grossed up.  As an example, a person whose W-2 income is $300,000 per year, has far less spending power then someone who earns $300,000 but only pays taxes on $200,000 because of appropriately deducting an expense that is part personal and part business and/or inappropriately taking excess business deductions for personal expenses paid through the business.  To exemplify this point, I have often asked the forensic accountant at a deposition or trial, "What would a taxpaying W-2 wage earner have to earn to have the same spending power (net after tax income), as this person?" 

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Last year, in the Fawzy decision, the New Jersey Supreme Court put procedures in place approving parents' ability to arbitrate child custody opinion.  This specifics of this decision was the subject of a prior blog at the time of the decision.  One of the procedural safeguards required by Fawzy was a verbatim record of the proceedings so that there could be meaningful review of the decision by a court.  Yesterday, the Supreme Court revisited this issue in the case of Johnson v. Johnson.  In May of this year, I previously blogged about this case though at that time, we all thought that the bigger issue for the court's consideration was whether Fawzy could be retroactively applied.

In Johnson, there was no verbatim record as was required by Fawzy, for the simply reason that the parties had agreed that there was not going to be a verbatim record.  They did, however, agree that the arbitrator would provide detailed findings of fact.  In fact, the arbitrator did provide extremely detailed findings both in the initial opinion and upon a motion for reconsideration.  After Fawzy was decided, an appeal ensued and the arbitration award was set aside for no verbatim record. 

The Supreme Court in Johnson started by reminding us of what Fawzy requires with regard to an agreement to arbitrate:

must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1.
In addition, it must state in clear and unmistakable language: (1) that the parties
understand their entitlement to a judicial adjudication of their dispute and are
willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree
to those limitations; (3) that the parties have had sufficient time to consider the
implications of their decision to arbitrate; and (4) that the parties have entered into
the arbitration agreement freely and voluntarily, after due consideration of the
consequences of doing so.

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In these economic times we have seen an increase in our practice of post divorce applications seeking a downward modification of a former spouse's support obligation(s).  These applications apply to both spousal support or alimony as well as child support.

NJ courts are all to familiar with these applications as there exists an entire body of case law that guides judges, attorneys and litigants alike in the burden of proof that must be established and the standard to meet in order to successfully seek the modification or defend against one.

Recently, the Appellate Court addressed this issue once again in the unpublished decision of O'Brien v. O'Brien, A-6045-08T1 decided November 10, 2010.  This matter stemmed from an appeal of the trial court's Orders emancipating one of the parties' 4 children and reducing defendant-husband's child support obligation.

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It goes without saying that it takes two people to agree to get married, making vows "til death do us part."  Those vows, spoken with all sincerity, good intention, and probably with a hopeful belief that the words will be literally followed, somehow fall by the wayside when one party decides to divorce. And while it takes two to get married, it only takes one party to get divorced, especially in the era of "no-fault" divorce. 

Many if not most people feel a certain sadness if not devastation over a divorce.  However, it is often a mutual decision, or at least one that both parties ultimately accept.  It is quite another thing when one party simply does not or cannot accept the divorce.  It is quite a somber experience telling a client that there is nothing that they can do if the other spouse does not want to remain married.  While we often suggest that that person suggest marriage counseling to their spouse, it cannot be compelled.

As I have blogged before, some people in this situation may try to delay the process, essentially delaying the inevitable.  This often drives up the cost of the process.  One wonder weather it also prolongs if not worsens their emotional suffering. While I am not suggesting that people give up on their marriage, when the end is inevitable and they can do nothing to stop it, perhaps it is best to try to move the process along in an orderly way so that they can get on with their life and, if necessary, start the healing.

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I have previously posted several blog entries about custody and parental rights where DYFS ("Division of Youth & Family Services"), NJ's child protective agency, has involvement.  To read those posts click here, here, or here.

On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling's request for visitation after children are placed outside the natural family's home and after they are adopted.  The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.

The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother's care and placed them in separate homes.  In 2005, Nellie, then age 23, resided in Va.  Hugo was 14 years old at the time.  In 2006, Hugo was placed with Nellie.  In 2007, DYFS discussed visitation of the twins with Hugo and Nellie.  In August 2007, Va.'s child placement agency ("RDSS") approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie's ability to support the children.  Based on that concern, visitation was recommended to ease the transition.  Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo's poor grades and Nellie's job loss.

The biological mother's parental rights were terminated in December 2007.  In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins.  At the same time, Nellie was informed visitation with the twins would stop.  In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation.  DYFS opposed her application.

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I recently heard a person say that their spouse believed his alimony and child support would be based solely on his salary.  I am sure he would like that but that statement is wishful thinking at best.  If he was correct, several hundred thousand dollars each year would be his alone and not considered for support.  Aside from potentially being unfair, it is not the law.

In fact, in New Jersey, the definition of income from support purposes includes all sources of income.  In fact, the Child Support Guidelines includes, but is not limited to 23 possibilities for income, as follows:

a. compensation for services, including wages, fees, tips, and commissions;
b. the operation of a business minus ordinary and necessary operating expenses (see IRS Schedule C);
c. gains derived from dealings in property;
d. interest and dividends (see IRS Schedule B);
e. rents (minus ordinary and necessary expenses - see IRS Schedule E);
f. bonuses and royalties;
g. alimony and separate maintenance payments received from the current or past  relationships;
h. annuities or an interest in a trust;
i. life insurance and endowment contracts;
j. distributions from government and private retirement plans including Social Security, Veteran's Administration, Railroad Retirement Board, deferred compensation, Keoughs and IRA's;
k. personal injury awards or other civil lawsuits;
l. interest in a decedent's estate or a trust;
m. disability grants or payments (including Social Security disability);
n. profit sharing plans;
o. worker's compensation;
p. unemployment compensation benefits;
q. overtime, part-time and severance pay;
r. net gambling winnings;
s. the sale of investments (net capital gain) or earnings from investments;
t. income tax credits or rebates (excluding the federal and state Earned Income Credit and the N.J. homestead rebate);
u. unreported cash payments (if identifiable);
v. the value of in-kind benefits; and
w. imputed income

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Though you don't see them much anymore, some times Marital Settlement Agreement contained escalator clauses which, in effect, provided for automatic increases in alimony or child support.  Some times they were a fixed percentage per year. Other times they were tied to the cost of living/Consumer Price Index. 

In the unreported (non-precedential) case of Burroughs v. Burroughs released on August 9, 2010, the effects of a 5% annual increase on alimony escalator clause was at issue.  In this case, the agreed upon alimony was $200 per week and based upon the husband's income of $60,000 at the time (1994).  The husband had comparable income until the year 2000 when he could no longer find same and went to work at Home Depot earning about half of what he made in the past.  In 2006, the alimony was increased to $337 per week, not due to a change of circumstances, but rather, by implementation of the escalator clause.  As an example why not to use such an escalator clause this reflects a 68.5% increase in support in about 10 years.

The husband's income continued at the less than time of the divorce levels until about 2007, when he established a business with a friend to try to increase his income from what he was earning at Home Depot.  This was not a success.  He ultimately filed a motion to terminate or reduce his alimony.  The motion was denied.

The Appellate Division reversed holding that the husband had made a showing of a change of circumstances by virtue of his Social Security statement showing far lower wages post-2000 than his alimony was based upon.  The effect of the escalator clause was also impacted on the showing of a change of circumstances (though this is curious because it certainly is a foreseeable event.)

The matter was remanded for discovery and a plenary hearing.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote a thought provoking post on that blog entitled "Some Free Advice About Marriage Counseling."  To read that post, click here.

Mark's post touches on the decision to get a divorce, a divorce lawyer's role (or lack thereof) in that process and the utility of marriage counseling.  I have often heard marriage counselors say that by the time that a couple got to them, it was too late, or that they went to marriage counseling for permission to get out of the marriage.  Some people go because they are trying to save face, or at least want to say that they tried when they have really checked out of the marriage long ago.  I have heard of others yet who have used the marriage counselor's office as the venue to drop the bomb about wanting/going forward with a divorce. 

In any event, Mark's post provides an interesting perspective on the issue. 

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In New Jersey, for the last several years, following the New Jersey Supreme Court case of Lewis v. Harris, NJ has had civil unions.  This was an attempt to give certain marital type rights to gay and lesbian couples, though many have argued that anything less than marriage is not equal.

Yesterday, the governor of Hawaii vetoed the civil union bill passed by the Hawaii state legislature.  Gov. Linda Lingle vetoed  the bill after concluding it was the equivalent to marriage, which she believes should be reserved for a man and a woman.  Further, the governor deemed the issue as too important to be decided solely by the governor or the state Legislature.  As such, she recommended a state constitutional amendment be placed on the ballot for voters in 2012. 
 

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Earlier today, I blogged about a NY Times article published yesterday about proposed New York legislation to adopt no fault divorce. That articles also noted that there was legislation proposed to set up a standard formula that judges would need to use to determine alimony (known in New York as maintenance).  The article noted that judges would still have discretion to modify those awards, but that the genesis of the proposed legislation is to prevent "widely inconsistent awards." 

While New Jersey child support guidelines to use where the parties' combined, net after tax income is $187,200 or less, we haves no such guidelines regarding alimony.  Further, I have heard of no proposal to implement them.  There is however, a dirty little secret called a "rule of thumb" that is often used to get a ballpark of what alimony should/could be.   Simply put, you subtract the lower income (or what that person could earn) from the higher income and take one-third of the difference. 

The rule of thumb is very simplistic and does not take into account any special factors other than income or earning capacity. It does not take into account actual taxes paid, lifestyle, sacrifices made, equitable distribution received or any of the other statutory factors.  Moreover, judges cannot use this to calculate alimony if the issue is tried before a judge. 

Do we want something like this in New Jersey?  While it may certainly make things easy and prevent wide deviations you may get from courtroom to courtroom and/or county to county, one size rarely fits all.  Rather, the statutory factors, if fully presented to the Court, and adequately considered Adan implemented by the judge, should result in a fair and reasonable award.  The rule of thumb is a useful sanity check, but no formula will be able to capture all scenarios.

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On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support.  This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles. 

The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court.  This comes up in two contexts in this case.  First, in a 2005 Order, for whatever reason, the trial court denied the father's request for child support for the parties' daughter who was in college.  In another motion in 2008, the father sought child support again.  Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement. 

The trial court disagreed with the mother's position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.

In addition, the Appellate Division affirmed the trial court's decision that the child's inheritance could not be considered with regard to support.  While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income.  Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child's assets are a factor to be considered.  Since the college was at issue in this case, one wonders why the inheritance was not considered here.

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Today's Daily Record has a story of a parenting time dispute that happens all too often. The story, written by Peggy Wright, tells a of a visitation/parenting time fight because a father wanted his 10-year old daughter to attend his birthday party instead of participating as a flower girl in her godmother's wedding. 

In ruling that the child should be permitted to participate in the wedding, the judge said that she believed the  girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.  The article further states:

"A birthday party happens every year. A wedding is once-in-a-lifetime," Whipple said.  Saying she didn't mean to diminish the importance of a child celebrating a birthday with a parent, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl. Addressing Miller directly, the judge asked: "Do you really want to say 'no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.' Do you really want to take that away from her?"

Though in one respect, the father had a right to be upset because the wedding was taking place during his scheduled parenting time, this is a typical example of divorce or divorced couples failing to be flexible and having a tug of war with their children, to the detriment of their children.  A simply remedy may have been to trade weekends or otherwise provide for make up parenting time.  Moreover, it was unclear from the story, but depending on how much notice the father had of this wedding, perhaps his birthday party (which was not on his actual birthday) could have been scheduled for a different do so that there was no conflict.  On the other hand, if the mother did not give the father adequate notice, as is often the case in these situations, then she too could have been responsible for this dispute.

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Suburban school districts were some of the most hard it by Governor Christie's new budget specifically, and New Jersey's budget crisis overall.  Many districts were already bracing for the bad news for several months, and had proposed school district budgets containing a lot of belt tightening.  However, the cuts were much worse than expected causing many school districts to asses how to meet the shortfall.  Some suggestions were lay offs, others were to cut services and some districts are considering both.

How does this apply to New Jersey family law you ask?  Some school districts are considering eliminating or charging for transportation.  This would be a new and/or unanticipated expenses.  Some districts are also considering eliminating or charging for sports and other extracurricular activities.

While the child support guidelines take into account some extra curricular activities of nominal costs, i.e. girl scouts. town sports, low cost school enrichment activities, they certainly do not consider school transportation and school sports.  Similarly, most support Orders and divorce agreements would not consider this either because it is not usually an issue.  If parties cannot agree on a fair and appropriate sharing of these expenses, or for that matter, how to get the children to school if the school isn't providing the transportation, then the courts could be burdened with applications to decide this issue.  It would seemingly be unfair to saddle the custodial parent with the entire financial and/or transportation responsibility under these unusual circumstances.

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For any family law practitioner, a high net worth and asset-rich divorce matter can become complicated.  Depending on which party the attorney represents, careful thought must be given to the division of assets, tax consequences and the calculation of income for support purposes.  This task has become more difficult with the recent volatility of the stock market and the many changes in high earning executive compensation, retirement and bonus packages.  A recent article in BusinessWeek by Alexis Leondis addresses and reminds us of many of these changes.

As many big financial firms gained media attention as a result of their financial practices and federal bailouts hit the streets, these companies were forced to take a closer look at their executive compensation packages.  Historically, many of the higher up executives received what some would call enormous bonuses in addition to their already six figure salaries.  These bonuses were included when calculating support figures as this money was typically used to meet daily expenses of the family, including the maintenance of lifestyles that consisted of private school tuitions, nannies and luxury vacations.

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As we recently learned from the Fawzy case that we blogged on, parties have a right to private ordering and self determination of how they want to resolve their cases.  In Fawzy, the NJ Supreme Court held that people could arbitrate custody matters as long as certain procedural measures were taken.

Can people decide to submit an issue to an expert for a binding determination?  On March 10, 2010, in an unreported (non-precedential) decision issued by the Appellate Division in the case of Cully v. Cully, the question was answered affirmatively.

In this case, post-judgment litigation occur ed over the correct interpretation of a Property Settlement Agreement, more specifically, the correct form of a QDRO (the mechanism to divide an ERISA controlled retirement asset).  The judge suggested that the parties could elect to have a QDRO expert
review both parties' QDROs and decide which QDRO is acceptable. The parties would split the expert's fee, and the loser would reimburse the other party for counsel's fees. The parties adopted the judge's suggestion and agreed to be bound by the expert's determination.

With certain modifications, the expert suggested adoption of the husband's form of QDRO and it was ultimately entered as an Order of the Court.  The wife appealed arguing that the court should have held a hearing on the parties intent since the language in their Property Settlement Agreement was not entirely clear.

The Appellate Division affirmed the decision finding that the since the wife's attorney advocated for and agreed to a binding determination by the expert, the wife could not then object when the decision did not go in her favor.  In fact, the Appellate Division specifically stated:

Our judicial process's integrity would be damaged if defendant received a second bite at the apple because she is disappointed that the process, which her counsel agreed to and advocated for, resulted in a decision unfavorable to her.  Both the doctrines of invited error and judicial estoppel bar this court from considering defendant's claims regarding the trial court's decision to accept Ms. DeFuccio's determination in this esoteric area of family law.

There are several lesson here.  (1) When you agree to submit a matter for a binding determination, you are stuck with that decision. (2) When you are dealing with the division of pensions, and there is any possibility for different interpretations/ways to divide it, it may make sense to hire the QDRO expert before the settlement so that the correct language is in the PSA; (3) in a similar vein, if possible, have the QDRO signed the same day that the divorce is entered.  Here, it appears as perhaps imprecise drafting was the problem.  Moreover, if the issue ultimately required a determination of intent, the decision to allow an expert, or anyone for that matter, to make a binding determination without first determining what the intent was, is a curious one.

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Post-judgment motions are common in family law, especially when it comes to paying for college tuition for the children of the divorced parties. Often times, older Property Settlement Agreements ("PSA") are ambiguous when it comes to which parent will pay a child’s college tuition. As was the situation in the recent unpublished decision in Orero v. Orero, App. Div., docket no. A-2230-08T3, decided on February 19, 2010.

The Orero’s were married in 1987 and divorced in 1996. In 1996, the parties entered into a PSA where they agreed that if the children were to attend college each party shall contribute “to the best of their ability.” Well fast forward 13 years and their oldest daughter is about to begin college in Colorado. Now, Mrs. Orero seeks Mr. Orero to contribute half of the daughter’s college expenses. Mr. Orero alleges that he was (1) not consulted regarding the daughter’s choice of schools, (2) doesn’t have the ability to pay because he has children from another marriage, and (3) if he must pay, than he is entitled to a plenary hearing (similar to a trial) to determine the relevant facts. As a result, Mrs. Orero files a motion with the court seeking to enforce the PSA. Notwithstanding Mr. Orero’s arguments, the trial judge ordered Mr. Orero to pay half the college expenses. Mr. Orero filed a motion for reconsideration, which is denied. So Mr. Orero appeals.
 

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On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

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I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents. 

 Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

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Whether an asset is exempt is a common issue that arises in divorce case.  The general rule is that an asset acquired prior to the marriage which is not commingled is exempt from equitable distribution.  In addition, an asset that is received via inheritance and/or third party gift is also exempt as long as it is not commingled.  Commingling is essentially putting an asset into joint names or depositing it into a joint account.  Changing something from someones own name into joint names is deemed as making a gift to the marriage.

Also, the law is clear that the person who seeks to have an asset deemed exempt has the burden of proving that the asset is exempt.

Because an engagement ring is a premarital gift, albeit a conditional gift, from one spouse to to the other, it is exempt from equitable distribution.  If the ring is replaced and/or enhanced during the marriage, while the original stone, if it exists, remains exempt, the new ring is not exempt.  In fact, any gifts between spouses during the marriage are not exempt and are subject to equitable distribution on divorce.  As such, some times we are required to have jewelry, furs, and other expensive presents appraised to determine their value for equitable distribution purposes.  Sometimes this task is made a little easier because parties have appraisals for insurance purposes which is why we often ask for the homeowners insurance policy riders.

The premarital portion of retirement assets, i.e. IRAs, 401ks, pensions, are typically exempt. For defined contributions plans (ie. the accounts with cash balances), the trouble may be finding or obtaining the documents to establish the premarital values.  That said, even though the premarital values are often commingled with contributions made during the marriage, the premarital portions are typically exempt.  Contrast that with a regular premarital bank account where deposits are made during the marriage using marital income.  Many would argue that this account has lost it's exempt status.  Is that fair?  What is the real difference?  Perhaps the difference is that though money will usually go in and out of a bank account, there usually is not the same type of two way activity as to retirement accounts.

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What happens if a parent throws a teenage child out of the home and continues to collect child support? In short – sanctions. Those were the facts in a recent unpublished New Jersey Appellate Division decision, Lidon v. Lidon, Appellate Division, docket no. A-3355-08T3, decided December 28, 2009. 

In Lidon, James and Jean Lidon were divorced in 1997.  Both parents were practicing attorneys. They had two children who resided with Jean. James paid $337 per week in child support to Jean.  The eldest child, a senior in high school, allegedly had a drug and alcohol problem. As a result, Jean threw their son out of her home in the summer of 2007.  This child subsequently lived with friends, in his car, and finally with Jean’s former boyfriend. He finished the school year and was accepted into Lehigh University. 

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Can a court order a person to take a paternity test? The short answer is - Yes.  Under the New Jersey Parentage Act of 1983, N.J.S.A. 9:17-38 to 59, any person with an interest recognized as justifiable by the court has standing to bring an action for the purpose of determining the existence or nonexistence of the parent and child relationship.  This type of action must be brought within 5 years after the child’s 18th birthday or by 23 years old.  That is, unless there is a justifiable reason for tolling. 

 In a recent New Jersey unpublished Appellate Division case, R.C. v. L.L., A-3057-08T1, decided December 11, 2009, the Appellate Division affirmed a Monmouth county trial court’s dismissal of a complaint by a 51 year old man against his estranged father to determine a parent/child relationship. RC was born in Germany to an unwed German mother in 1956. RC's mother had told him when he was a teenager that his father was an American soldier that had been stationed in Germany. In 1987, RC made efforts to find his father to no avail. Finally, in 2006 he was able to contact his alleged father, LL. Although at the time LL agreed to take a paternity test, he subsequently changed his mind. Finally in October 2008, RC filed a complaint seeking among other things an adjudication of LL's paternity. LL filed and was granted an application for summary judgment dismissing the case. RC appealed the trial court’s order. The Appellate Division affirmed the trial court’s decision and upheld the dismissal, finding that the complaint had been filed 28 years beyond the statute of limitations and allowing it to proceed was unfair. 

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THE HOLIDAYS.   For some people, the holidays are a joyous, festive, and happy time of the year - filled with family, friends, and well wishes.   For the rest of us, the holidays are stressful, hectic, and at times depressing.  Another year has come and gone - little has changed. I am a year older.  I have not lost those 20 pounds I swore I would lose at the beginning of the year - and now I have to lose that 20 plus an additional 15!  Ahh yes..... the holidays. 

For those people on the midst of a divorce these feelings can be exacerbated and even compounded further when children are involved.   During a divorce or immediately following, will be the first time children and both parents are not celebrating the holidays together.  Old traditions may be broken.  No longer will certain in-laws be seen, some you may have actually liked.  This can be hard on everyone involved, especially the children.

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I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey. 

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

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