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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Nearly everyone who has a judge rule against them thinks that the judge got it wrong.  Why litigate if you didn't think you were right?  Judges are human and some times they actually do get it wrong.  In those cases it is easy to get their decisions reversed, right?  After all, that's why we have a Appellate Division, right?

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

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

The standards on appeal, we noted was follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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