Posted on December 12, 2012 by Eric S. Solotoff

Dealing With The Diversionary Negotiator

Recently, I did a blog entitled Putting a Stop to Threatening, Bad Faith Negotiations.  In that same case, what preceded the threats, were bad faith diversions or refusals to provide even the most basic of information necessary to settle the case - in this case, "how much are you going to earn this year?" 

Alternating with the vagueness and misinformation about income ("confusing" gross with net to make the income seem smaller") was an outright refusal to address the issues we were discussing.  I get it - the guy doesn't want to pay alimony.  Who does?  But alimony was a real issue in the case and the real issue that will make or break any settlement. Every time we tried to focus on the alimony issue, the adversary came back without a response on alimony, but raising an irrelevant (in the grand scheme of things), red herring side issue.  This happened time after time. 

After a few times, we ended the discussions for the day.  I am not saying that we wont address the issues raised, if they are truly an issue.  But just like the threats, these smoke screens were raised as a tactic to divert from the main issue, perhaps to wear down my client or otherwise confuse the issues. 

At the end of the day, you have to keep returning the negotiations to the central issues.  Otherwise, you are simply wasting time and allowing the bad faith negotiator use tactics to gain an advantageous settlement.  Stay strong and stay the course.  Don't allow the negotiations to be hijacked by nonsense.

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

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Posted on March 5, 2012 by Sandra C. Fava

DIVORCING YOUR CREDIT REPORTS

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. 

As an example, if during the divorce a judge orders one spouse to make the payments on a joint credit card, and that spouse fails to do so, in the eyes of the creditor (and reflected on your credit report), both spouses failed to make the payment.  Now, you may file a motion asking the judge to order your spouse to pay the credit card and award counsel fees, but even if you win, your credit report will still be negatively impacted. This is why it is so important to take precautionary measures.

First, know where your credit stands. Check your credit report and identify which accounts are joint accounts and which are individual.  Since information on the three national credit reports can differ, it is a good idea to check your Experian, Equifax, and TransUnion reports.      

Second, consider closing joint accounts or accounts for which either spouse is an authorized user.  By closing the account, even if you continue paying down the balance, you ensure that neither spouse can add charges to the account. Be certain that doing this is not a violation of an existing support agreement or Order from the court.  It is important to note that creditors cannot, on their own. close joint accounts because of a change in marital status, but can do so if asked.

Third, make sure that all payments on individual accounts and joint accounts are made on time.  Protecting your credit during the divorce will make moving on after it financially much easier.  If you are interested in learning more about your credit rating, click here.

Sandra Fava is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild's Family Law Practice Group. Sandra practices throughout New Jersey in all areas of family law and family law litigation. You can reach Sandra at (973)994-7564, or sfava@foxrothschild.com.
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Posted on October 5, 2011 by Melissa Ruvolo

Paying Child Support through Probation - Anticipating a Cost of Living Adjustment (COLA)

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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Posted on August 18, 2011 by Sandra C. Fava

BE CAREFUL WHAT YOU BARGAIN FOR WITHOUT THE ADVICE OF COUNSEL

It is common and often unfortunate that I meet with clients who decided, for whatever reason, that they would represent themselves during a divorce proceeding.  There are cases where that decision may be perfectly acceptable.  More often than not, the people I have met are coming to me because they are totally unsatisfied and/or unhappy with the deal they've made for themself and are looking to an attorney to get them a better deal.  Sometimes this is a possibility.  However, when the ink is dry on that formal agreement, it makes things more complicated.

Recently, the Appellate Division affirmed a lower court's decision regarding the enforceability and conscionability of an Agreement negotiated and reached by the parties and formalized by husband's attorney.  Wife chose to remain self represented during the negotiations and execution of the Agreement.

After husband made a post-divorce application in the trial court to enforce the Agreement, wife challenged its validity, claiming unconscionability, inequity, unfairness and that it was obtained through fraud.  The trial court conducted a two day hearing during which both parties and husband's attorney testified.  Thereafter, the trial court rejected wife's arguments that the Agreement was invalid, unfair, inequitable and procured through fraud.

By now you may be asking, how can that be? If wife was self represented, she may not have known the law and didn't understand what she was signing.  While a possibility, the testimony in this case revealed otherwise opined the trial court judge.  As an aside, if you're going to represent yourself in court, on some level, it is incumbent upon you to learn the law and understand what it is you are negotiating and ultimately agreeing to.

The trial judge in this case found that while the Agreement waived formal discovery, that alone was not dispositive of wife's claims.  Also, while wife was self represented, the judge found that she voluntarily agreed to waive her discovery rights and to bind herself to the terms of the Agreement.  To that end, the judge found wife had been previously married and had drafted an Agreement in connection with the break-up of that marriage, therefore she understood the significant of such Agreements.  Also, the judge found that the parties had discussed the terms of the Agreement before it was executed in August 2005 - demonstrated by the prototype prepared by the parties and given to the husband's attorney to formalize. The parties' participation in a mediation session with regard to the division of marital assets.  Wife also acknowledged and was aware of the Agreement's terms when she received a check to her from husband marked "Separation Agreement".  In addition, wife negotiated an increase of husband's support obligation to the tune of $2,000 more per month.

The trial judge also found that the Agreement was not grossly unfair, that the parties did not have grossly disproportionate bargaining power, and that the wife had sufficient time to reflect upon the terms of the Agreement.

The Appellate Court upheld the findings of the trial court and affirmed its decision.  Lesson to be learned from this - be careful what you bargain for, especially without the advice of counsel.

To read more, click here.

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Sandra Fava is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild's Family Law Practice Group. She practices in Fox Rothschild's Roseland, New Jersey office though she practices throughout New Jersey. You can reach Sandra at (973)994-7564, or sfava@foxrothschild.com.
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Posted on October 11, 2010 by Sandra C. Fava

NJ SUPREME COURT REVIEWS STANDARD FOR SIBLING VISITATION AFTER ADOPTION AND/OR PLACEMENT

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.

In June 2008, the trial court held that the twins should remain with their foster mother who was agreeable to visitation at that time.  The court did not provide a specific visitation schedule but relied on DYFS to facilitate and fund the visitation.  One month later the foster mother changed her mind and was no longer agreeable to visitation.  In October 2008, the trial court held that it couldn't order the foster mother to permit visitation.  The Appellate Division affirmed, stating that it was DFYS' responsibility to determine whether visitation was in the twins' best interest.  The NJ Supreme Court granted certification.

The Supreme Court wrote a detailed and carefully crafted decision that sought to strike a fair balance between the relationship between siblings and a parent's right to autonomy in raising a child.  The Court held that under the Child Placement Bill of Rights Act, visitation between siblings placed outside the home is presumed in the period before adoption and DYFS has an independent obligation to facilitate visitation.  In order to oppose visitation, DYFS must prove it's contrary to the child's welfare under the standards set forth in the Child Placement Bill of Rights Act.  Parental autonomy isn't absolute and a biological or adoptive family may be ordered to allow third-party visitation to avoid harm to the child.  This holding has been applied to grandparent's requests for visitation with their grandchildren.

The Child Placement Bill of Rights Act governs sibling visitation during the period when a child is placed outside it's biological family's home, including after parental rights have been terminated.  Under this Act, DYFS has an obligation to nurture sibling relationships, regardless of whether a sibling has initiated the process or if termination has occurred.  If DYFS opposes the visitation, it bears the burden of proving, under the standards set forth in the Child Placement Bill of Rights Act, that the visitation would be inconsistent with the health, safety and welfare of the child and the child's development.  A foster family's disinclination to be involved with sibling visitation is not a relevant factor.  This even means that siblings can petition for visitation with their brothers and sisters who have been adopted by non-relatives.  The sibling must establish beyond a preponderance of evidence that visitation is necessary to avoid harm to the child.  This is the same standards courts are to apply to requests for grandparent visitation.
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Posted on May 27, 2010 by Sandra C. Fava

ALIMONY LESSONS -1) MAKE SURE YOUR CIS IS ACCURATE, AND 2) REHAB ALIMONY CAN BE TURNED INTO PERMANENT ALIMONY

I tell virtually every client I work with that the Case Information Statement which must be completed by anyone going through the formal divorce process in NJ is one of the most important documents to be completed - arguably, the most important document.

The recent unpublished decision of Raesky v. Brody, A-6148-08T1, decided May 26, 2010, reinforces my mantra.  When completing a Case Information Statement it is important to be honest (it's a document signed under oath with the risk of penalty for perjury), realistic, and thorough.  The budget, assets and liabilities listed on this document will assist a judge in determining the issues of spousal support and the division of assets.  These statements are the maps which judges follow to lead them to a final determination of these issues.

By over inflating  your budget, you give the other side the ability to poke holes at your credibility.  Sometimes the thinking that the higher my budget the more money I can get may backfire, as it appears to have done for Ms. Brody.  Also, in the case where the budget is artificially low, the payor spouse's credibility will be questioned.  If it is the payee spouse with an inaccurately low budget, they run the risk of receiving inadequate support and thus they're unable to meet their needs let alone maintain even a semblance of the marital standard of living.

While this is part of the lesson learned in Raesky, this case is noteworthy for another reason.  Here, where the parties had negotiated and entered into a settlement agreement in which the husband paid a greater sum of alimony than he would have otherwise been required to pay but agreed to do so because there was an end date specified and where the court found the wife's testimony about the marital lifestyle along with her Case Information Statement incredible, the court still modified the parties' agreement and turned the rehabilitative alimony obligation into a permanent alimony obligation because of the wife's disability.  One wonders whether alimony would have been extended if it was deemed limited duration alimony initially as opposed to rehabilitative alimony has limited duration alimony is not to be extended absent extraordinary circumstances.

In coming to its decision the court specifically noted that the wife was not found credible but that as a court of equity, the principles of equity dictated the outcome achieved.  Notably, the wife was awarded an amount far less than what husband had originally been paying.  In reaching that number, the court relied upon the husband's Case Information Statement and found his testimony regarding the marital lifestyle to be credible.

Lesson to be learned- while filling out the Case Information Statement can be confusing, burdensome, frustrating, time consuming- whatever your description, practitioners and litigants alike must pay close attention to the information being provided.
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Posted on April 11, 2010 by Robert A. Epstein

RELIGIOUS UPBRINGING AFTER DIVORCE - WHICH PARENT DECIDES?

Religion in both marriage and divorce is often a very delicate issue that can strain family relations and put family members at odds with each other.  The strain can be even greater when the parents are each of a different religion.   An interesting article from today's Chicago Tribune by Manya A. Brachear called Religion Used as Weapon in Divorce focuses on the issue of a child's religious upbringing post-divorce in light of increased interfaith marriages.  Notable figures cited in the article include a percentage increase of interfaith marriages in the Jewish community from 17% to 47% from 1970 to 2000, and that interfaith households are 3 times more likely to end in divorce as those where both parents share the same faith. 

In New Jersey, the primary caretaker of the child (the Parent of Primary Residence - defined as providing a residence for a child for more than 50% of overnights annually or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child's religious upbringing and education.  The rationale is to allow the primary caretaker to decide the issue should there be a disagreement because that parent might know the child better than the other based on greater day-to-day exposure with the child.  By contrast, the other parent (the Parent of Alternate Residence) may only choose to expose, but not educate the child in another religion.  What does expose mean as compared to educate?  Exposure generally includes taking a child to religious services during the non-primary caretaker's parenting time, but not enrolling him or her in religious training or classes. 

To that end, we litigated a case where the mother was the primary caretaker and raised the child in the Catholic religion.  The father wanted the child to attend classes at his Mosque that were held simultaneously during adult services.  Instead of describing it as a "class," however, he claimed that it was simply a separate room where all the boy children came together to play and were exposed to the Islamic religion.  It was clear, however, that dad was trying to blur the lines between education and exposure to convince the court to allow the child to attend the classes.  At the end of the day, the court correctly didn't buy into his story.   

There was also a case in New Jersey where the parties lived as Protestants during the marriage and raised the children that way.  The settlement agreement made no mention of religion and, soon after the divorce, the wife converted to Orthodox Judaism and also converted the children over the husband's objections.  She even sought to modify the settlement agreement to allow them to remain with her on every Sabbath, as well as Jewish holidays, to impose certain dietary restrictions, and to enroll them in Hebrew Day School in lieu of their attendance at a public or private non-religious school.  To show the strength of the primary caretaker's religious decision making power, the court allowed the wife to raise the children in the Orthodox Jewish religion, prevented the father from enrolling the children in a Christian Sunday School or other formal religious educational program, and parenting time was modified to permit the children to spend major Jewish holidays (but not the Sabbath) with mom. 

The article does a good job of highlighting the impact of religion on marriage and divorce and the way in which parents may use religion and the children as a way to impose their will over the other parent.  The impact on the children, though, can never be understated in these types of situations and one would hope that differences could be worked out without litigation, especially on this most sensitive of issues.
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Posted on March 2, 2010 by Sandra C. Fava

COLLEGE TUITION - WHO PAYS?

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.
 

After hearing the arguments of both parties, the Appellate Division affirmed the denial of defendant's motion for reconsideration and granted plaintiff's motion to compel defendant to contribute to the costs of their daughter's college education based on its findings, among other things, that (1) there were no factual disputes that required a plenary hearing; (2) the language in the parties' property settlement agreement required defendant to contribute to his daughter's college expenses to the best of his ability, not if he believed he had the ability to do so; and (3) Mr. Orero must pay, notwithstanding he simply does not approve of her selection of an out-of-state school.

When dealing with older or ambiguous PSA’s attorneys must advise, and clients must understand, that “the court’s role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose” of the PSA.
 
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Posted on February 7, 2010 by Eric S. Solotoff

THE SUPER BOWL AND DOMESTIC VIOLENCE?

Every year at about this time, you hear a supposed "fact" that Super Bowl Sunday is the biggest day of the year for domestic violence.  I even saw something on this this week on either Twitter or some news service.  I figured that I was use this blog to pass along a public service announcement about this scourge to give a heads up to potential victims.

Funny thing is that when I went to research this, I found several articles suggesting that this was really urban legend.  No less than Snopes, the debunker of all rumors and urban legends says that this "fact" is simply not true.

I am not trying to make light of this or domestic violence in any way but what is true?  Well, what is true is that the use/abuse of alcohol often plays a role in domestic violence.  Common experience tells us that there is a lot of drinking when watching the Super Bowl.  In fact, people who don't typically watch football may attend a Super Bowl party where alcohol is being served.  One need only watch the glut of Super Bowl beer commercials to see the almost overwhelming role of alcohol in Super Bowl culture. 

That all said, while their may not be a societal rise of domestic violence on Super Bowl Sundays, victims and potential victims need not simply accept domestic violence and should do what they need to to protect themselves, call the police and/or avail themselves of all domestic violence resources in there area. 

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Posted on November 30, 2009 by Sandra C. Fava

New Jersey - Is New Domestic Violence Legislation on the Way?

The recent act of domestic violence by singer Chris Brown on his very famous girlfriend, Rihanna, has brought new attention to the fact that domestic violence is not a socio-economic problem limited to the lower class.  Unfortunately, I often see the ugly side of relationships and not surprisingly domestic violence is an issue I also deal with.   New Jersey is attempting to help protect victims of domestic violence by protecting  the victims essentially from themselves. 

A new law that is pending in the New Jersey Senate would require that if a victim of domestic violence desired to dissolve or modify a final restraining order, a court would be required to make a finding and a record.  Assembly, No. 746, State of New Jersey, 213 Legislature.  Anyone who has been following the Chris Brown/Rihanna saga will tell you that within days of the incident where Chris Brown physically assaulted Rihanna, they were back together as a couple. (They have since split.) Unfortunately this is often the case.  Sometimes, it takes victims of domestic violence years to escape the cycle of abuse.

In New Jersey  a victim of domestic violence can apply for a temporary restraining order at a county courthouse or at a police station by applying to a municipal judge.  Once a temporary restraining order is issued either a hearing is held where it becomes final or it is dismissed.  (The temporary restraining order can also be resolved through negotiations amongst the parties if there is an active divorce or other family court action pending - however, the resolution will not have the same protections and enforcement rights that a domestic violence restraining order does.) 

If the temporary restraining order becomes final, but the parties later reconcile and desire to modify or dissolve the final restraining order, the new law would require the parties to return to court.  In court a judge would create a record to make sure that the victim was not making the request under duress or coercion.  The new law would also require that the victim be aware of the consequences of modifying or dissolving the order.   Finally - and probably most importantly - the new law would allow a victim of domestic violence to reinstate a final restraining order even if there is no additional act of domestic violence.  This means that if parties to a domestic violence final restraining order dissolved the order and reconciled the relationship, the victim could reinstate the final restraining order at any time - even if there were no additional acts of domestic violence.
 

If this bill is passed, what happens in those instances where an individual is falsifying an act of domestic violence in order to get an advantage in the divorce action or to have the other party removed from the residence?  Unfortunately, there are instances where the Prevention Against Domestic Violence Act is abused by individuals who falsify claims of domestic violence for just these reasons.  It would appear that in a case where the claims have been falsified, under this new proposed legislature, the other party could essentially be held hostage by the threat of returning to court and imposing restraints.  It seems to me that the legislature may need to add more  protections to ensure the law is not abused.
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