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

How many prenuptial agreements have language in them that the parties are entering into the agreement free from duress, coercion, undue influence, etc?  The answer is all of them.  Some even ask people to waive fraud - how you can do that I don't know because if you knew you were being defrauded, you probably wouldn't enter into the agreement.  How many times is the agreement presented at the last minute, after the bride to be's parents are out tens of thousands of dollars for the wedding?  How many times does the person presenting the agreement say "Don't worry about it, it doesn't mean anything", "don't worry about it, I'll give you more" or "don't worry about it, I'll rip it up in 5 years or after we have kids, etc?" 

This probably happens all to often or at least, more often then we want to believe.  In most cases, since you have said you have entered into the agreement free from duress, etc., you will have a hard time getting out of the agreement at the time of divorce.

But alas, comes the Petraikis case out of New York discussed in yesterday's New York Post.  In this case, Elizabeth argued that Peter coerced her signature, threatening to call off the wedding even though her father had already paid $40,000 for the reception.  She also claimed that he told her that he would rip up the agreement as soon as they had children.  The trial court set aside the prenup on the basis that Peter fraudulently induced Elizabeth to sign it.  The Appellate Court upheld this decision.

In New York, prenups are usually particularly hard to overturn so many deem this to be a landmark decision.  The take away here is that despite the recitations in the agreement, the door is open to try to prove contrary behavior and/or that there were additional promises outside of the agreement.  One wonders whether a video taped signing with the usual questions that the agreement was voluntarily being entered into would have saved the agreement.  That said, for the proponent of the agreement, you need to be really careful about what you say to induce the other side to sign an agreement and what pressure is put on to get an agreement signed.

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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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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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On the heels of our New Years Resolution Divorce post, I thought it made sense to also resurrect our prior posts on preparing for the divorce process and how to select a divorce attorney. 

Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer. We also previously posted South Carolina matrimonial attorney, Mellisa Brown's article entitled "How to Find the Right Divorce Attorney for You."

The process, however, starts even before that. On our web site, we have an advice piece entitled Preparing for the Divorce Process.

Since it is linked to this post, I will not repeat everything contained in the piece. However, the topics contained in that piece are as follows:

• Speak to an attorney now, not later
• Selecting the right attorney (including how to get referrals for an attorney)
• Gathering documentation
• Preparing for the initial meeting
• Telling the truth
• Keeping a diary; and
• Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times. Divorce can be a long, highly charged, expensive process - emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children's interests.

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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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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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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as Harmful as Physical Abuse."

While some of the local programs Aaron discusses for his county may not be available in New Jersey, the piece provides a good explanation of the issues and I encourage you to read it.

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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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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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Fox Rothschild's New Jersey Family Law Legal Blog welcomes Kelly Sutliff, MA, LPC, NCC, a licensed professional counselor with Kelly Sutliff, LPC, located in Madison, New Jersey, as a guest blogger.

Having known Kelly for over ten (10) years and speaking at length with her about the trauma that many children suffer through as a result of divorce, I thought it would be helpful for readers to hear about the mental and emotional impact of this process from a mental health professional. Below is an excerpt from a piece written by Kelly to better help parents going through a divorce understand the impact on their child.

"It's my fault". "My parents don't love me anymore". "I lost my family". "I'll never see my mom/dad again". These heartbreaking comments are commonly mentioned by children affected by divorce. Although these comments may be unrealistic, the sense of loss a child may feel as a result of his or her parents' divorce can be overwhelming and devastating. It is important for parents to help their children to cope with the divorce as well as to seek outside professional help, if needed.

Divorce can be an emotionally traumatic experience that can have an impact on a child's feelings of safety, security, and stability. Frequently, the stress children feel as a result of their parents' divorce relates to the family structure changing. Children fear change and the amount of changes that follow a divorce can be overwhelming and frightening. Many children also feel a loss of attachment to one or both of their parents after a divorce. Changes in scheduling and how often they see a certain parent can cause a certain amount of distress. The fear of being abandoned is also a fear that many children of divorced families face. Often, they feel that because one parent has moved out of the "family home", they are likely to lose the other parent at some point as well. They may blame themselves, feel unloved, and worry that they are the cause of their parents' relationship ending. Another factor that can lead to children's feelings of stress is hostility and fighting between parents. Arguments and tension between parents may make children feel angry, guilty, and alone. Some children feel "put in the middle" of their parents' arguments and believe that they are being asked to choose sides. The internal struggle that these children face when feeling this way can have profound negative effects on their behavior.

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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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Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the "war of attrition" will force the other party to give them what they want to avoid further motion practice.  We as family practitioners know that while the Rules of Court provide a party with the ability to seek a counsel fee award from the other party for a variety of reasons including, but not limited to, "evening the financial playing field," assisting a party in need where the other party has the ability to pay, or, commonly, addressing the other party's unreasonable behavior, courts do not always award fees even in what may seem like an obvious situation to do so. 

For example, a party bringing a motion to enforce litigant's rights may not receive an award of fees even if they tried to settle to no avail before filing the motion, especially where the other party "remedies" the issues before the Court actually decides the motion.  Of course, the motion would not have been filed had the other party earlier complied, but the effort to render issues "moot" after the motion is filed oftentimes sways a court not to award fees even though it was the motion itself that compelled compliance.

I recently dealt with the "war of attrition" litigant, who has filed the same motion against our client time and again - literally, the same motion each and every year post-divorce.  In each of the three years since the divorce, he was denied his requested relief in three separate motions.  As sure as the sky is blue, the former spouse again filed a motion this year - his fourth - for the very same type of relief as to parenting time.  Notably, the former spouse also retains a different attorney for each motion in an effort to cleanse the court's palette.  In two of the three prior denials of his requested relief, he was Ordered to pay our client substantial counsel fees since he makes six times the annual income of our client, and his repeated efforts to financially pressure our client into getting what he wants have proven transparent in the eyes of the court.

On this fourth occasion, the story was the same and, thankfully the result - a denial of the former spouse's requested relief and an award of full counsel fees for our client.  While the immediate result was positive, as it has been after each prior motion, I have no doubt that the former husband will again file a motion for the very same relief in 2012, 2013 and beyond until the child is emancipated upon whom the requested relief was based.  While one can only hope that our client will continue to successfully fend off his attacks, the more unfortunate problem is that she cannot stop him from filing his motions.  In fact, when he was denied time around, he verbally questioned the judge, incredulous that he would be denied again despite the lengthy history of denials and him being found to have not only acted unreasonably, but in bad faith, as to his litigation tactics.  It was this response that only further confirmed that we will be back in court next year, starting anew the annual litigation cycle that not only leaves our client financially drained, but also causes great emotional strain upon her and her family that cannot be remedied by a mere award of counsel fees.

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The times, they are a'changing - at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of "texting" from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

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Recently I blogged on the difficulties experienced by some spouses left with no choice but to abide by New Jersey's "no fault" divorce process.  Looking at the husband in "Crazy, Stupid, Love", and discussing how, if the story there took place in New Jersey, he would have to get divorced simply because his wife wanted to.  Now from the Israeli newspaper "Haaretz" comes the story of a woman who was fined 200,000 shekels (approximately $56,000) by an Israeli court for refusing to divorce her husband, even after she was directed to do so by a Rabbinical court.  

Interesting was the Israeli court's rationale for the fine, deeming it to be sufficient compensation for the wife violating the husband's autonomy.  Also interesting was the wife's rationale for refusing the divorce.  While the husband proved to the court that his wife was infertile and, as a result, should be compelled to divorce him, the wife refused to grant the divorce or participate in the process because she believed that her husband (from whom she had separated years earlier) was simply interested in another woman.  Showing just how stern the court was with its ruling, it held that the fine would stand even if the parties subsequently divorced by agreement, and that the wife could be subject to future fines if she continued in her non-compliance.

Obviously this situation would not occur in New Jersey with its no-fault divorce option.  Further, although not an issue here since it was the husband who sought the divorce, it is worth noting the complexity and nuance involved with procuring a Jewish divorce.  Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry.  A secular divorce will not do the trick, as the couple's marital status will remain unchanged under Jewish tenet.  We have blogged on this topic previously.  Notably, in the United States, a wife may seek relief from a civil court for an Order directing the husband to grant the Get, such as via an action for specific performance since there really is not sufficient legal remedy to redress the wife's injury including, among other things, her inability to remarry in the eyes of Jewish law.  In the eyes of the New Jersey judiciary, compelling a husband to obtain a Get provides is for a secular purpose - the end of the marriage.

While such a situation is different from that described herein, both situations reflect the broad cultural and religious spectrum that underlies the divorce process domestically and abroad.    

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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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It is typical for divorce agreements to contain a provision requiring an alimony payor to maintain life insurance to secure his alimony obligation and one, if not both parents to maintain life insurance to secure their obligations to their children.  In fact, Jennifer Millner, a contributor this this blog, and a partner in our Princeton office, recently did a post entitled Child Support Obligations Live on After Death, addressing what happens when a support obligor does not have the required life insurance at his death.

It is also typical for someone to cover their life insurance obligations through insurance they get as a benefit of their employment.  Many companies, for example, offer as a benefit, life insurance - one times their salary, three times their salary - for example.  What happens when someone leaves their job and loses this life insurance?

That issue was addressed by the Appellate Division in an unreported (non-precedential) opinion released on April 1, 2011 in a case entitled Starr v. Starr.  In this case, to secure his alimony, in the divorce agreement, it provided that, "Defendant shall designate plaintiff as a beneficiary of $150,000.00 of the proceeds of the group life insurance made available to him through his employment."  However, in 2005, he was given notice that his employment was terminating.  He did have the option of converting his group life insurance to an individual policy but he did not. 

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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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Visiting a divorce attorney for an initial consultation can be a difficult and intimidating proposition.  For some, it is the realization that their marriage may be over.  For others, it is simply the discussion of such deeply personal matters with a stranger.

Nerves or trepidation aside, the main purpose of the initial consultation is to learn about the process and understand what your rights and obligations could be.  The law is never black and white but has many shades of gray.  A good consultation will explain the black and white and touch upon the relevant areas of gray. 

The initial consultation is also important because this process lets you interview your potential counsel.  Not only is it important that you find the attorney you plan to hire to be competent and best able to represent your interests, but its important that you also like your potential counsel.  Sounds trivial but keep in mind that your divorce lawyer is someone who is quickly going to learn the good and the bad of you and your most personal relationship, your marriage.  Secrets aren't helpful and a level of trust is required.

So what can you do to make sure you get the most out of this initial consultation and at the same time provide counsel the relevant and important information needed?  Here are some suggestions:

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This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.

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Following on the heels of an earlier blog entry this week addressing "alimony escalators" in the context of proving a change in circumstances meriting a decreased alimony obligation, a new unreported (not precedential) decision from the Appellate Division in the matter of Eick v. Eick, found that the husband had fulfilled his initial "changed circumstances" burden meriting the matter being sent back to the trial court for a plenary hearing on the issue. 

In Eick, the husband was a self-employed bookbinder who was obligated to pay permanent alimony to his former spouse pursuant to a February 2007 property settlement agreement in the amount of $1,500 per month, as well as $2,000 per month in child support for the parties' two younger children (a number agreed upon that went beyond the child support guidelines calculation).  Critically, the PSA established that such figures were based on an income of $117,000 for the husband and $29,000 for the defendant.  As an important aside, it is important in any settlement agreement to note what incomes were utilized to determine support so that a baseline figure exists should the issue arise in the future.

In March 2009, the payor husband filed a motion to reduce his support obligations based on an alleged change in circumstances - a claim that his business had "declined dramatically" due to online research tools utilized by many clients that rendered the need for his services substantially diminished.  He also claimed that his business had suffered due to the growth of imported bond printed material, as well as the general downturn in the economy. 

Interestingly, the former husband supported his application by submitting the report of an employability expert, who concluded that, while he could learn new skills, changing careers was not a realistic possibility after 27 years in the bookbinding business.  The report further concluded that his best option was to stay in his industry, anticipate a continued decrease in business volume, revenue and earnings, and consult with a career counselor or business consultant to determine available options.

In reversing and remanding the trial court's decision denying the husband's modification motion, the Appellate Division noted that not only had his income decreased, but that the wife's income had "significantly increased" - an undisputed fact set forth in the wife's Case Information Statement that the trial court failed to address.  The Appellate Division also concluded that the trial court failed to make sufficient findings as to whether the husband's decreased earning situation was of a permanent or temporary nature, since a temporary situation is not enough to merit a changed circumstances finding.  Even though the trial court noted that the bookbinding industry had undergone difficult times when the PSA was entered, the judge also noted that the situation was further "complicated" by the downward economy.  As a result, the trial court's denial of the husband's application was reversed and remanded for a plenary hearing.

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In an unreported (non-precedential) decision in the case of Brown v. Brown  released on May 25, 2010, the Appellate Division determined that veterans disability benefits and social security benefits are income for purposes of determining alimony.  In this appeal of an Order that granted some alimony reduction but not as much as the former husband sought, the facts are not particularly interesting.  That said, what was interesting was that the reduction was not as much sought (and in actuality, the ex-husband sought an elimination of alimony, because the court considered the veteran's disability pension and Social Security over his objection.  In fact, he tried to argue that the spendthrift provisions (provisions that prevent creditors from attacking certain assets/benefits) in the relevant federal laws prevent such consideration but the Court noted that a spouse seeking support was not a creditor within the meaning of the law.

The matter was, however, remanded because the trial court did not analyze the statutory factors when reducing the support.  As noted in my blog last week about the Walsh case, when dealing with a motion to modify alimony, once the Court determines ta ht there is a change of circumstances, they have to look at the needs of both parties.  In fact, if the Court makes an initial finding of a change of circumstances, the court must analyze how much the alimony should be in a modification application the same way it would in an initial alimony application.   

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Divorce Negotiation Primer".

There are several points I would like to highlight:

• negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
• negotiation is intended to narrow issues
• at the time of trial, no one is bound by the positions taken during negotiations
• a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
• Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.

As usual, Mark's advice is good advice. 

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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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Previously we blogged on alternate dispute resolution methods ("ADR") such as mediation and arbitration. "Collaborative Divorce" is another ADR method.

"Collaborative Divorce" is defined as  a form of alternative dispute resolution for divorcing couples where a  team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however, they work cooperatively with their spouse.  The collaborative process uses informal discussions and conferences attended by both spouses and their attorneys to settle all issues. The collaborative process is premised upon an atmosphere of honesty, cooperation, integrity, and professionalism. It requires that both spouses, with the assistance of their attorneys, provide all pertinent documents and information relating to the issues to be settled. In the event that experts are necessary, it encourages the use of jointly retained experts. Both spouses and attorneys are required to work together toward a shared resolution that is geared toward the future well being of the family. If the parties cannot reach a settlement through the collaborative process approach, the collaborative lawyers withdraw from the case and the parties then retain trial attorneys to pursue the matter in court.

Is collaborative divorce for everyone? I am a divorce litigator and people often come to me with complex, high conflict and/or high stakes cases so perhaps I am biased in that regard. Even still, I cannot see collaborative divorce being for everyone to be used in every case. Just as I wrote about my concerns about mediation, i.e. the possibility of a spouse taking advantage of an imbalance of power; the settle at all costs posture whether the resolution is fair to both parties or not; etc., I think that those pitfalls are just as possible in collaborative divorce.

For instance, I recently heard of a divorce case described as "freakish". At the same time, the husband was described as a "power broker" and the wife was a housewife with a young child. Most confusing was the revelation that the parties were involved in a "collaborative divorce."

To me, this sounded like a recipe for disaster. How can a "freakish" divorce be collaborative? If both parties are "power brokers" perhaps collaboration could work though it seems like both would want to "win." Collaboration seems unlikely when one party is a "power broker" and the other is not - capitulation seems more likely than collaboration. Ever wonder why the more powerful spouse wants to mediate?

Perhaps for a garden variety divorce with two reasonable people, this can work. In most other cases, it seems that the interests of the weaker party could be compromised. 

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What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010. 

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation.   After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA).   At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.

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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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One would have hoped that Sean Goldman's return to the United States with father David Goldman would have been the end of this years-long international saga.  Sadly, however, that may not be the case.  News reports yesterday indicated that 9-year old Sean's Brazilian family will fight to regain "custody" of Sean, which is interesting since the family's actions and that of the boy's now deceased ex-wife really constituted an international abduction, thus leading to the boy's ultimate Court-Ordered return. 

After the family previously indicated that the fight was over, lawyers for the family will push to have the Brazilian court hear the boy's wishes after all - indicating as much on the same day that the boy returned home to Tinton Falls, New Jersey, claiming that it was "our home" when seeing the house where he will live once again.  Since the Supreme Court in Brazil does not convene until February, it would not be able to hear the family's arguments before then.

How the Brazilian family's ongoing legal actions will impact their likely future claim for visitation is unclear, as even their decision to publicly parade Sean through the streets in Brazil on the way to the United States consulate on Christmas Eve has been roundly criticized and, according to David Goldman, was a traumatic experience for Sean.  The family, however, has substantial financial resources and will likely fight this losing battle, seemingly at the wishes of Sean's maternal grandmother, until there is no avenue untapped.  For an additional prior blog post on this topic regarding Sean's return, click here as well.  Stay tuned for further details.

EDITOR'S NOTE:  We have previously blogged on grandparent visitation on several occasions.  Grandparent visitation is difficult to obtain in New Jersey following the US Supreme Court's decision in Troxel v. Granville and the New Jersey Supreme Court's decision in Moriarty v. Bradt and the cases that followed it.  Given the constitutional protections of the rights of a parent to parent their child(ren) free from interference from third parties, grandparents now must prove actual harm to the child if they do not receive visitation.  While on one hand, the death of a parent (as was the case in Moriarty) would be a factor in the grandmother's visitation request here on one hand, the abduction and the history in this case may mitigate that factor.  Moreover, one wonders whether, despite the harm that may be able to be proved in this case, given the circumstances surrounding the child's alleged bond with the grandmother and step father, that visiitation with these people who were allegedly part of the ordeal that kept father and son apart for several years, would overcome the harm.  ERIC S. SOLOTOFF

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What payment obligation, if any, do divorced parents have towards their child's post-high school education?  The New Jersey Supreme Court concluded more than 25 years ago that a child's right to support includes a "necessary education" after high school, whether it be a vocational school or college.  However, a parent's obligation to pay for such schooling depends generally on the expectations and abilities of the parties involved to pay, as set forth in 12 different factors including:

1.  whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;

2.  the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;

3.  the amount of the contribution sought by the child for the cost of higher education;

4.  the ability of the parent to pay that cost;

5.  the relationship of the requested contribution to the kind of school or course of study sought by the child;

6.  the financial resources of both parents;

7.  the commitment to and aptitude of the child for the requested education;

8.  the financial resources of the child, including assets owned individually or held in custodianship or trust;

9.  the ability of the child to earn income during the school year or on vacation;

10.  the availability of financial aid in the form of college grants and loans;

11.  the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and

12.  the relationship of the education requested to any prior training and to the overall long-range goals of the child.

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Under New Jersey law, a party of a divorce can seek modification of an order for child support or alimony if there is a “change of circumstance” that affects the income or earning ability of one of the parties.  Lepis v. Lepis, 83 N.J. 139 (1980).  This proposition is one of the most common reasons for post-judgment motions in New Jersey Family law courts, especially in the current economy.  But in a recent unpublished New Jersey Appellate Division decision, Good v. Nedza, the Court affirmed a post-trial order, which did not permit a recalculation of child support or arrears because one of the parties failed to act on information they had obtained years earlier and had at the time when the parties entered a Consent Order for child support.

In Good, the parties were divorced in 2002.  At the time, Mr. Good was the primary provider and the wife, Ms. Nedza, was a homemaker.  The parties had three children.  They agreed that Mr. Good would pay child support and alimony, and they would share joint legal custody of the children with Ms. Nedza having primary residential custody.  Over the years circumstances changed.  By September 2005, all of the children were residing with Mr. Good and his child support obligation was terminated.  A Consent Order entered in January 2006 addressed Ms. Nedza’s child support obligation to Mr. Good.
 

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If a California web designer gets his way - Til death do us part? – will mean just that. John Marcotte, who runs the comedy website Badmouth.net, is attempting to put a measure on next year’s ballot that will ban divorce in California. The effort is meant to be satirical. The thought process behind the idea is that if California can pass Proposition 8, which bans same-sex marriage, allegedly to protect the sanctity of marriage, than what prevents California from going one step further and banning divorce?   

So far Marcotte has not collected the 694,354 signatures necessary to put the proposition on the ballot, but with a grass-roots movement and use of the Internet, he may achieve his goal – although it would be highly unlikely to pass.  And even if it did pass, it would certainly be found unconstitutional if challenged in court. But the proposition does raise an interesting question – does the State have an interest in protecting the sanctity of marriage?

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Since they have been in the news a lot lately, I have bloged a lot recently on celebrity divorces, be it John & Kate, Stephanie Seymour or Jim Nantz.  That is why the article from Billy Witz that recently appeared in the New York Times about the divorce of Frank McCourt and Jamie McCourt, the owners of the Los Angeles Dodgers got my attention.

Both parties claim to own the team - though Frank claims to be the sole owner.  Both worked for the team until recently, when Jamie was fired.  As a sign of the war to come, Jamie's lawyers budgeted her legal fees for this matter to be $2 million.  Per the article, the central issue is as follows:

"The key legal issue is whether the Dodgers are considered the McCourts’ community property. Under California law, a couple’s assets are split 50-50 unless a written agreement states otherwise. Shortly after buying the Dodgers, the McCourts put the team in Frank’s name and all their property in Jamie’s name to protect the homes from potential creditors. One of her lawyers, Michael Kump, said they would challenge the validity of the postnuptial agreement.

If the agreement is not valid, Fisher said, the McCourts would probably be forced to sell, as John Moores did with the San Diego Padres when he divorced."
 

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