Posted on June 20, 2010 by Robert A. Epstein

Rogers v. Gordon - The Next Chapter - This Time Counsel Fees

We previously blogged on the Appellate Division's notable decision in Rogers v. Gordon, which addressed the legal standard applicable to prenuptial agreements signed prior to New Jersey's enactment of the Uniform Premarital Agreement statute.  There, the Appellate Division reversed a trial court Order to the extent that it set aside the entire prenup, since, as to equitable distribution, the husband knew that the wife would likely be wealthier than him at the time of a divorce given her family wealth.  As to the issue of alimony, however, the Appellate Division modified the trial court's Order by holding that the husband could seek alimony at a later date if he could establish "changed circumstances" pursuant to Lepis v. Lepis, 83 N.J. 139 (1980).

Considering the level of acrimony involved in the divorce proceeding, which could be easily discerned from the first Appellate Division decision, it was no surprise that a second appeal was filed, this time as to the issue of counsel fees.  On this appeal, the wife argued that the trial court erred by allowing the husband to seek and obtain counsel fees as to his claim for alimony, since he was denied such a claim in relation to equitable distribution issues previously raised. 

The Appellate Division affirmed the trial court's finding that the husband had expressly waived in the prenup his right to counsel fees in relation to equitable distribution, but that he had not done so as to alimony since the prenup provision regarding alimony did not contain a similar provision waiving counsel fees on that issue.  Ultimately, the Appellate Division remanded for a proper calculation of fees incurred as to alimony, but what struck me as interesting in reviewing the Opinion was the Appellate Division's conclusion that the husband's attorney had achieved some sort of success as to the alimony issue.  Specifically, while it noted that the attorney had not obtained for the husband an immediate benefit - i.e., he still was not entitled to alimony without establishing changed circumstances - the attorney was deemed successful in that he opened the door for the husband to make such a claim in the future.  This even though the husband could very well fail in making that future claim. 

The primary theme in the case was one of contract interpretation - while one paragraph contained language waiving counsel fees, another did not.  Since the prenup was the product of expert drafting, the Appellate Division found the lack of language waiving counsel fees as to alimony to be significant and, as a result, did not preclude the husband's claim.

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Posted on April 17, 2010 by Eric S. Solotoff

PRENUPTIAL AGREEMENTS - ONE SIZE DOESN'T FIT ALL

We have blogged frequently regarding prenuptial agreements.  There is also an advice piece on our firm's web site entitled "Considering a Prenuptial Agreement - Should My Children Have One?"  We have also recently been involved in drafting and/or negotiating a number of prenups lately.  This has reminded me that one-size does not fit all when it comes to prenuptial agreements.

A lot depends on the stages in life that that the parties are in and what they are seeking to protect.  For instance, if there are two young people starting out in life, the agreement should probably be very different then one where the parties are older, and this is a second (or third, fourth or fifth) marriage for them. 

If both parties are young, and there is a desire to preserve premarital assets, family businesses, etc. that seems to be perfectly appropriate.  Whether alimony should be addressed in such a prenup is questionable.  However, I have seen cases where the alimony provisions in such agreements are punitive.  Moreover, for young people, it may not be fair to insulate from distribution earnings during the marriage, but if that if is going to be done, then perhaps there should be a fair fund in lieu of equitable distribution. 

For people who are both older in second marriages, perhaps the desire is to preserve the assets that each has for their children from their prior marriage.  The issue of alimony, or the waiver thereof, may depend on the ages, disparities in assets, etc.

For people where there is a large age difference, consideration must be given to being fair to the less financially advantaged spouse (usually the younger one), while perhaps protecting the estate for prior children, or protecting someone from someone inclined to "marry for the money."

The permutations are endless as are the options.  As I said, one size does not fit all. 

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Posted on December 13, 2009 by Eric S. Solotoff

ON TIGER, "INDISCRETIONS", "INFIDELITIES" AND SO ON - ALL OF THE GOSSIP GIVES RISE TO A GREAT LAW SCHOOL EXAM QUESTION

I have blogged several times about the celebrity divorces that have been in the news, from John & Kate, to Christie Brinkley, to Stephanie Seymour, to Jim Nantz, to the McCourts who own the LA Dodgers and others.

Every day for the last few weeks, Tiger Woods has been front page news regarding what he first called "indiscretions" and now calls "infidelity."  We have heard in the news about potential sweeteners to his prenuptial agreement if his wife stays, to rumors that she will leave him and so on .  Obviously, since the information from Tiger and his wife is limited, people are left to speculate and gossip.

 As a New Jersey Divorce Lawyer, the best that I can offer is to give some comments on how New Jersey divorce and family law would apply to the facts (hypothetical, speculation or true facts that have been reported). 

In New Jersey, marital fault is largely irrelevant except in limited circumstances.  Though not particularly necessary anymore since we have no fault (irreconcilable differences) divorce, the fault ground of adultery can still be plead as a divorce cause of action.  That said, receiving a divorce based on adultery does not get you anything more financially.

In fact, a few years ago, the Supreme Court reinforced this point in the case of Mani v. Mani where they held that absent extreme situations, fault is irrelevant to alimony and equitable distribution. The exception could be in marital funds were used to fund the affair.  Given that there appears to be a prenup, this would not likely be an issue for Tiger.

There is a question as to whether, in New Jersey, a pre-nuptial agreement could be modified.  Obviously, if the benefit in the new prenup is greater, perhaps it could be possible.  However, it would have to have same formalities as an actual prenuptial agreement.  There would seemingly have to be full disclosure.  However, an interesting issue that could put  jeopardize the enforceability of an agreement is that there seemingly would be no consideration for the agreement. 

However, while New Jersey looks very carefully at post-nuptial agreements, mid marriage agreements could be enforced in limited circumstances.  In those cases, the marriage would have to be on the precipice of termination and would not stay together but for the agreement. 

As to custody and parenting issues, infidelity does not usually have an impact on these issues.  That said, if someones conduct is so dangerous, destructive, reckless, etc. that it either evidences some psychological issue or the inability to parent, then perhaps it could impact custody.  I am in no way alleging or implying that that is the case here. 

Finally, I have had cases where the infidelity lead to an STD being transmitted from the philandering spouse to the innocent spouse.  Again, I am in no way alleging or implying that that is the case here.  In a recent case that I had where this occurred, we amended our divorce pleading to add tort causes of action. 

So with each day, as the gossip continues to fly, the potential family law issues implicated multiply.  Stay tuned to see what next occurs in this sad soap opera.
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