In our ever-changing society that is becoming more transient as we modernize, it’s important to remember time requirements for a state to establish jurisdiction over a child should you find yourself in need of a custody determination after residing across state lines. 

In the reported decision of P.H. v. L.W., the parties met in Chicago while P.H. lived in New York and L.W. lived in South Dakota, had twins born in South Dakota and, eventually after a sorted history, they resided together in New Jersey from July 18, 2015 to January 13, 2016 when L.W. packed all of her and the twins’ belongings and made her way back to South Dakota where she arrived on January 15, 2016. P.H. then returned to New York in early 2016.  The facts are explored below but it’s primarily important to look at the takeaways here based on those bare bones.

First, the Appellate Division reversed the trial court’s findings that New Jersey was the “home state” of the parties’ twins because they resided here for five (5) days short of the six (6) month requirement of N.J.S.A. 2A:34-54. The initial orders finding New Jersey as the home state were entered based upon the P.H.’s misrepresentation that the twins begin residing in New Jersey three (3) days earlier than L.W. and the twins actually moved in with him in Dumont (July 15, 2015 as compared to July 18, 2015).  That earlier date is when he signed the lease for the Dumont apartment, without L.W. on the lease, as opposed to the day that they actually moved in with him.

Additionally, the Appellate Division further found that the twins’ absence from New Jersey for the few days short of the six (6) month requirement was not “temporary”. If, for example, the twins were on vacation for those days, then the days would have counted toward the required time period.  Here, however, their absence was the result of L.W. moving permanently from New Jersey back to South Dakota where she hails from.

Although the trial court’s jurisdiction finding was based solely on the “home state” argument, the Appellate Division did not stop there to hammer home the point that New Jersey lacked jurisdiction.  Rather, it explored the alternatives that New Jersey could have used to find jurisdiction of the parties’ twins.

Citing to N.J.S.A. 2A:34-65(a)(2), New Jersey may still have custody over a child who resides here for less than six (6) months if:

  1. No other state has jurisdiction or
  2. A court with home-state jurisdiction declines to exercise it and
    • the child and at least one parent or person acting as the parent have a significant connection with New Jersey other than mere physical presence and
    • substantial evidence is available in New Jersey concerning the child’s care, protection, training and personal relationships.

Neither of the above requirements existed in the case at hand, in part due to the time that passed between the father arguing that New Jersey is the home state (and leaving out the above alternatives) and the present appeal.  P.H. initially filed his New Jersey custody application on January 28, 2016 when the twins had been outside of the state for about two (2) weeks.  The trial court could have found jurisdiction based on the “significant connection” and “substantial evidence”.  However, with the passage of time, this totally changed.  The Order being revisited was entered in June 2017 denying L.W.’s April 2017 request to dismiss the New Jersey custody orders based on a lack of jurisdiction.  At the time it was filed, both parties had resided outside of New Jersey for almost a year and a half.  Thus, jurisdiction would not have been warranted by either the significant connection” or “substantial evidence” tests, above.

Taking it a step further to really confirm that New Jersey does not have jurisdiction, citing to N.J.S.A. 2A:34-71, the Appellate Division opined that South Dakota is a more convenient forum as compared to New Jersey.  Here, it is important to note that even if the above standards had been met (either the home state, significant connection or substantial evidence tests), New Jersey courts have the authority to decline jurisdiction if:

  1.  New Jersey is an inconvenient forum under the circumstances and
  2. Another state is a more appropriate forum.

There is no question that South Dakota was more convenient as L.W. and twins had lived there for about a year and a half when the appeal was filed.

Although the above may seem straight forward, family law cases are extremely fact sensitive and the facts here are nothing short of interesting:

Timeline of Residence in New Jersey

  • L.W. is from South Dakota and lived there when the parties met in Chicago in 2012.
  • P.H. resided in New York when the parties met.
  • L.W. became pregnant and gave birth in South Dakota in June 2013.
  • P.H. returned to New York City following the birth.
  • L.W. and the twins lived in South Dakota until 2015 with period visits from P.H. that she claims included domestic violence acts committed against her.
  • In June 2015, L.W. and the twins went to live with P.H. in New York – both in an RV on a campground and in P.H.’s apartment.
  • On July 15, 2015,  P.H. signed a lease for a house in Dumont.
  • L.W. and the twins moved into the house on July 18, 2015.
  • L.W. obtained possession of the home upon entry of a Temporary Restraining Order (“TRO”) in New Jersey on December 14, 2015, which also provided that she have custody of the twins.
  • P.H. obtained his own TRO against Defendant on January 11, 2016, also filed in New Jersey.
  • On January 13, 2016, L.W. packed her belongings for a permanent move back to South Dakota, and she provided evidence by way of her mover’s inventory that she took all of her belongings and the move was permanent.
  • On January 15, 2016, L.W. arrived in South Dakota where she continues to reside with the twins.  There was evidence that she was in Chicago on January 14, 2016 and, thus, had started her journey back to South Dakota.
  • P.H. then returned to New York shortly thereafter.
  • On January 28, 2016, the New Jersey court dismissed L.W.’s TRO against P.H. when she failed to appear for the final hearing.

Timeline of Custody Determinations in Both South Dakota and New Jersey

  • On January 28, 2016, the same date of the above TRO dismissal, P.H. filed a complaint seeking determination of paternity and custody.  P.H. failed to successfully serve L.W. at the address he sent the motion, namely her father’s home, as L.W. was living at an undisclosed residence because she did not want P.H. to know her whereabouts in light of her alleged domestic violence history.  L.W.’s father did not send her this mail until October or November 2016.  This unopposed application was the catalyst for New Jersey being declared the twins’ home state.  Of course the lack of service was not yet known to the court.
  • During the time in which P.H. filed his case in New Jersey (without L.W.’s knowledge), L.W. obtained a temporary order of protection in South Dakota on January 27, 2016 and then the final Order on March 8, 2016, which awarded her custody of the twins.
  • On March 17, 2016, the New Jersey court entered an order requiring L.W. to submit the twins to genetic testing for paternity purposes following the unopposed application.
  • On September 1, 2016, the New Jersey court ordered L.W. to bring the children to New Jersey, finding that she improperly removed the twins who had resided in New Jersey for six months.
  • On October 25, 2016, the New Jersey court again found that New Jersey was the twins’ home state because they lived here for six (6) months and ordered a bench warrant for L.W.’s arrest, as well as modified custody to grant P.H. sole legal custody of the twins to have them brought back to New Jersey to address paternity and custody issues.
  • P.H. used that New Jersey Order as support for his request that South Dakota modify its March 2016 Order granting L.W. custody of the twins.  L.W. opposed the application.  The judges of each state conferred and then South Dakota vacated the custody portion of the protective Order and ordered that L.W. comply with the New Jersey genetic testing Order, which she did.
  • On March 31, 2017, the South Dakota Court relinquished its limited jurisdiction to New Jersey.
  • In April and May 2017, L.W. unsuccessfully challenged the Orders entered in both states as to New Jersey’s jurisdiction – with New Jersey finding that jurisdiction had been decided and the family would be left without a “place to go” because South Dakota relinquished jurisdiction.  The trial court never addressed L.W.’s argument that New Jersey is an “inconvenient forum”.

With all that said, try to ensure that your children reside in the state where you want to be heard for at least six (6) months before you file for a custody determination.  That can be easier said than done.  Whether your timing is a bit off or you meet the six (6) months, do not box yourself into a corner by basing your case on only one argument in your favor – use them all.  That holds true for issues well beyond custody jurisdiction.  Happy home hunting!


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

gavel A recent decision handed down by the Appellate Division in an estate litigation matter serves as a reminder of the all-too-frequent intersection of family law and trusts and estates law. The fact that this case, In the Matter of the Estate of Douglas Castellano and the Parentage of Gregory Bock, is a published decision only further underscores its importance in matters related to paternity, divorce, adoption and intestacy.

I am particularly fond of cases with fact patterns that read more like an episode of Jerry Springer than something you’d typically find in a legal text.  In this case, a woman, Elisa, ended a two year relationship with her partner, Douglas, and married a man named Gregory two months later.  Seven months after the marriage, Elisa gave birth to a child, Greg, Jr.  The child was named after Greg, Sr., who was listed as the father on the child’s birth certificate, despite the fact that Greg, Sr., knew he was not the father and that Douglas was well aware he was the father.

When Greg, Jr., was barely three years old, Greg, Sr., and Elisa divorced.  Greg, Sr., was granted visitation of the child and paid Elisa $80 per week in support.  Even so, Greg, Sr.’s relationship with Greg, Jr., tapered off and he only saw the child approximately two times per year until Greg, Sr., died when the child was a teenager. The child only learned the identity of his biological father from his mother at the age of 30. Following that reveal, Greg, Jr., and Douglas had a casual relationship, consisting of occasional phone calls and even fewer visits.  The relationship never blossomed further and Douglas was tragically murdered 8 years later in 2016.  Given his unexpected and untimely death, Douglas passed without a will.

Aside from Greg, Jr., Douglas’ only living relatives were his siblings. When they sought letters of administration for Douglas’ estate, Greg, Jr., filed a caveat which prompted their lawsuit. Under the intestacy laws, if Douglas died with no spouse, no children, and no living parents, his estate would pass to his siblings. If, however, Douglas was found to have descendants (in this case, children) the siblings would not be entitled to inherit.

On a motion for summary judgment, the trial court declared that as a matter of law, Greg, Jr. was Douglas’ sole descendant and therefore entitled to inherit from the estate. The siblings appealed, asserting that the trial judge failed to give sufficient weight to a presumption under the New Jersey parentage act, which declares a “man is presumed to be the biological father of a child if… [h]e and the child’s biological mother are or have been married to each other and the child is born during the marriage”.  The Appellate Division rejected this argument and affirmed the ruling below.

In so holding, the court found that the only question was whether Greg, Jr., was Douglas’ descendant.  Because a DNA test conclusively established paternity as such, the case could have been rather simple. However, the siblings raised the novel argument that given the statutory presumption that Greg, Sr., was the child’s father, representations about the child’s paternity during Elisa and Greg, Sr.’s divorce, and principles of equitable adoption, summary judgment was premature and improper.

As far as the statutory presumption of parentage, the court found that it was unequivocally overcome by the DNA test.  Moreover, the parentage act was designed to “facilitate the flow of benefits from the father to the child,” and not sever a biological link.

Under the theory of equitable adoption as argued by the siblings, Greg, Jr., should have been considered “equitably adopted” by Greg Sr., and therefore not the descendant of Douglas, given the the child’s treatment and representation as Greg, Sr.’s child at birth and during the divorce.  The court found this argument unconvincing and concluded that this case lacked the gravitas found in earlier cases which have utilized the remedy of equitable adoption.  Specifically, the court found that while Greg, Jr., took Elisa’s husband’s name, who was listed on the birth certificate, none of that was within Greg, Jr.’s control. Moreover, he was a toddler when Elisa divorced and had no input in the content of her judgment of divorce.  Indeed, the court found that the child’s fleeting relationship with Greg, Sr., after the divorce was insufficient to sever the irrefutable, biological link to Douglas. Moreover, the court opined that principles of equitable adoption have been historically employed to protect and enforce inheritance rights between parent and child, not destroy them.

The court boiled down the siblings’ case to the argument that the principles of intestacy should not apply because they had a stronger relationship with Douglas than Greg, Jr., did.  In a wholesale rejection of this argument, the court made plain that the laws of intestacy do not make such an exception simply because one relative knows the deceased better than the other.  The court concluded its opinion with the oft-cited reminder in estate litigation matters that if the decedent had intended a different result than that which the law provides, he could have (and should have) executed a will to that effect.

This case provides a cautionary tale for anyone who desires to have their estate pass in a manner inconsistent with the default rules laid down by the legislature. This is especially true for individuals who know they have legally unrecognized children who might pose an unwelcome surprise for loved ones in the event of an untimely death. For everyone else, it is a reminder that compelling circumstances are required to apply the principles of equitable adoption and formalizing relationships is the best way to predict how your relatives will be treated in family law and estate matters.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

At its elemental level, divorce is really all about division. Division of the union, division of the assets and division of the debt. It’s about taking whatever the parties put into the large marital pot and splitting it up between them. Sounds pretty simple – right? Well, not really.

For people with complex finances, the notion of dividing assets and debts, assessing lifestyle and arriving at a reasonable resolution can be a formidable task. While divorce lawyers are well qualified to deal with the division of assets or assessment of support, the question that are to be answered by forensic accountants are: What is that value to be divided? Where did the money go during the marriage? How much is at stake?

The above is true even in relatively amicable divorces; division of assets can prove to be a knotty mission with all sorts of complicating factors that an expert will need to untangle.

The following are the typical examples of when a forensic accountant may be helpful, useful and even necessary:

  1. Corporate Interest, Partnership or Sole Proprietorship: Many times, a divorce will involve a situation where one or both parties are business owners. The non-owner spouse is typically entitled to a portion of that business interest assuming it was acquired during the marriage. In many cases, this can be the largest marital asset to be divided between them and requires special expertise to make the assessment. In that case, a forensic accountant will need to sift through the books of the business to determine the standard of value and premise of value. This is complicated by the fact that the goodwill of the business, as well as other intangible assets, must be valued and divided between the parties. Such analysis required both objective data and subjective scrutiny based on the particulars of the business in question.
  2. Corporate Benefits: A forensic accountant will need to determine the value of vested and unvested portions of stock options, restricted stock units, performance shares, or the benefits from other long-term incentive plans. The forensic accountant will compile the relevant data and calculate the value of these assets using complex mathematical models and projections.
  3. Dissipation Claim: Sometimes, a spouse will make a claim that one party spent money on non-marital ventures. This could be related to an extramarital affair, gambling, etc. In that event, a forensic accountant will need to sift through bank statements to determine the amount that had been dissipated and the proper compensation to the non-dissipating spouse. The accountant will also need to assess the nature of the claim so that the appropriate analysis can be accomplished.
  4. Determination of Income: A tax return may tell only part of the story in terms of what a party’s income was during the marriage and will be moving forward. That is because a business owner experiences significant leeway in terms of deductions and the payment of personal expenses. A forensic accountant will need to examine the relevant financial data to see what should be “added back” to the income so that the parties can arrive at the true cash flow experienced during the marriage. This analysis is important when arriving at the value of a business interest as well as when you are assessing alimony, child support, or another financial obligation.
  5. Lifestyle & Spending: In New Jersey, the assessment of alimony and (sometimes) child support depends on how the parties lived during the marriage and how they spent their money. Such an analysis may require a thorough accounting of all expenditures during the marriage by each party over a period of several years. At the end, spreadsheets are generated with an analysis of spending and lifestyle that the parties use in arriving at the appropriate level of support.
  6. Tax Analysis: Tax issues arise in almost every divorce, big and small. If a property settlement or support award is not structured wisely, tax implications can arise for either or both parties. That is why it is crucial to seek the advice of an accountant, particularly with the new tax laws coming into effect in the near term.

As you can see, having a forensic accountant on your team may be invaluable as you navigate the complicated and, sometimes, adversarial, world of divorce. Only you and your attorney can decide how, when and why an expert forensic accountant may be necessary.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

I recently represented a client at mediation during which the parties were able to resolve virtually all of their issues, save for the Wife’s claim that the Husband should make a significant contribution to her counsel fees.

It was the Wife’s position that the Husband had run up her legal fees with multiple order violations, refusal to turn over discovery, and by taking totally unreasonable positions; moreover, since he made more money than her, he had a greater ability to pay her legal fees.

It was the Husband’s position that the Wife had run up his legal fees with her own unreasonable positions.  He also criticized her for choosing lawyers who are more expensive than those he chose to engage, arguing that he shouldn’t be held responsible for her choice to do so.

With this being a major impasse for the parties, it seems inevitable that a judge will decide the issue either in isolation or together with a trial on other unresolved aspects of their divorce.

Because the Family Court is a court of equity, a judge determining whether to award legal fees to one side has to consider the parties’ relative financial positions, including their respective incomes, assets, debts, support obligations, and other relevant financial circumstances.  The Court also must give due consideration to the question of whether one party acted unreasonably, or in bad faith, or violated court orders, or refused to produce discovery and therefore thwarted efficient resolution of the matter.  The Court Rule allows for consideration of legal fees already awarded by the Court, for whatever reason.  Perhaps there was a pendente lite contribution to legal fees for which the moneyed spouse should be credited.  Or, perhaps there is a history of court order violations for which fees were awarded as a form of sanction.  Whatever the reason, prior fee awards must be considered.

Ultimately, the question of whether one side must contribute to the legal fees of the other side is a question of fact, for which the Court must consider the following factors:

  1. The financial circumstances of the parties.  
  2. The abilities of the parties to pay their own fees or contribute to the fees of the other party.  
  3. The reasonableness and good faith of the positions advanced by the parties both during and prior to trial.
  4. The extent of the fees incurred by both parties.
  5. Any fees previously awarded.
  6. The amount of fees previously paid to counsel by each party.
  7. The results obtained.
  8. The degree to which fees were incurred to enforce existing orders or compel discovery.
  9. Any other factor bearing on the fairness of an award.

But here’s the rub.  Just like any other question of fact, the Court must make findings based on evidence.  In other words, there must be a trial or at least a lengthy written submission including evidence produced as exhibits.  As parties, you have to decide:  are you willing to incur the fees to try the issue, or is the amount in controversy going to exceed the fees you would spend to have the judge decide?

And, importantly, what you may view as a clear cut bad faith action or unreasonable position taken by your adversary, the Court may not be so inclined to think is all that bad.  Submitting the issue of counsel fees for a judge to decide is most definitely a gamble, and like any other wager, you should assess the odds, cost-benefit, and the possible outcomes before making the decision to fight the issue to the bitter end.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

All Hallow’s Eve is upon us.  All month long, I have watched my favorite Halloween movies (Hocus Pocus, anyone?), visited haunted houses, carved my Jack-O-Lantern, and engaged in all the usual Halloween festivities.  But it occurred to me:  the scariest thing that many of my clients will go through in their lives is their divorce.  And there’s a reason why the ghosts, ghouls, zombies, witches, and hobgoblins of Halloween are trotted out each year to scare us – that feeling of being up against soullessness and inhumanity is terrifying.  And it’s how many of my clients feel about the people they are dealing with through their divorce process, whether it be their ex and/or his/her attorney, a mediator, or even a judge.

Here’s what it can be like:

Zombies Abound:  It can feel like everyone you are dealing with is a soulless zombie – even your spouse.  Suddenly, your spouse may act with no emotion toward you and will forget like the past years of your life together never happened.  For example, according to him or her, you’re not the loving parent to the kids that you know you always were.  His or her attorney will treat you with no emotion at all, acting at the direction of your spouse.

Likewise, the judges, experts, and mediators – whether on your side or not – have a non-emotional role to play.  They won’t necessarily care about the personal issues that are important to you.  They will look at your case in an agnostic, non-emotional way.

Witches Cast Their Spells:  Sometimes, it might feel like there’s a hex upon you and you just can’t win.  Or, it may feel like no matter how untrue or manipulative your spouse’s claims are, the judge or the mediator believe him or her, as if (s)he’s cast a spell over them.  No matter the situation, it may sometimes feel like you have no control or that everything is going your spouse’s way, for no discernible reason.

Vampires Suck Your Blood:  Maybe this is a little too “on the nose.”  While your lawyers aren’t going to be doing unnecessary work, divorces get expensive.  If you are the “monied spouse,” you may be paying for not only your own legal fees, but those of your husband or wife – and not only for attorneys, but perhaps also for various experts, or a mediator/arbitrator.  All while continuing to support the family during the divorce.

Frankenstein Lives:  I often use the term “Frankenstein” when referring to an agreement of any kind that has been drafted, then revised, revised again, and revised some more.  It often becomes a mishmash of different thoughts that each party had at different points in the negotiation, and when taken together, makes little sense as a whole.  This is NOT what you want the ultimate written agreement (or any interim agreements) to be.

So, how do you keep your divorce from becoming a Halloween-style nightmare?  Here are some thoughts:

  • Hire a qualified, conscientious, attorney with a good reputation.
  • Listen  to that attorney.  After all, you hired him/her because (s)he is qualified, conscientious, and has a good reputation.
  • Take control of the story, and change it if you have to.  If you feel like nobody is listening to you, then whatever it is you are saying is not resonating.  For example, if you are claiming that your spouse should have less parenting time because your child has been returned to you from parenting time with bumps, scrapes, or bruises, and the judge is not moved by this information because he or she views them as typical for a child of that age…then maybe you need to try a different argument, if you have one.  Or, if you are arguing that you have tried and tried to find a new job after being fired from your old one, but just haven’t been able to find anything at your prior income level, then maybe you need to stop explaining and start showing the Court exactly what efforts you have made.
  • Keep the written agreement simple, and only make necessary revisions.  While every word in an agreement is important, trust your attorney to ensure that the agreement says what you want it to say.  Don’t over-complicate it just because you insist upon one word being in the agreement that is not there, and don’t give in to the feeling that the attorney on the other side is trying to “trick” you with revisions.  That’s why you hired a lawyer.  In the end, you want an agreement that is easily understood by a third party who knows nothing about your case, because if an issue comes up in the future, you may be assigned a judge who is just that.

 

 

Nobody wants to go to Court. In fact, you’ve probably spent your whole life doing everything not to go to Court. But you’re getting divorced. And now, it’s unavoidable. Hopefully, you’re working toward settling your case so that you only have to see the judge when he or she stamps your Final Judgment of Divorce. Hopefully, in a dispute that arises after the divorce, you can speak with your former spouse and reach a resolution.

But, that’s not always possible. Either one side is unreasonable or there is a complex legal or factual issue in your case that both parties see completely differently. Either way, the differences are irreconcilable and you end up before the trial court.

Now, you’re not unique. All family law matters are initially determined at the trial court level. A trial court judge will make a ruling based upon the litany of issues that are presented during your case.

If you feel that the judge “got it wrong” there are two higher courts in New Jersey that a party may seek an appeal from a final trial court order. There is an appeal as a matter of legal right to the New Jersey Appellate Division. A party dissatisfied with a decision of the Appellate Division may seek the appeal to be Certified and heard by the New Jersey Supreme Court. Certification is rare and reserved for only novel legal issues and other very specific circumstances.

While it may sound odd, cases are oftentimes tried with an eye toward the appellate division. That means, even if you’re not thinking of the possibility of appeal at the trial level, be sure that your lawyer is. The possibility of an erroneous legal decision or incorrect application of the law to the facts is always swirling around in our minds. We prepare for and try cases with the notion that we need to “make a record” just in case.

That’s because you have no chance of a successful appeal if you don’t check off all requirements at the trial court level. This requires your lawyer’s attention to a number of different issues, all while trying for a successful adjudication of your trial court issues as well.

For example, while you’re worried about the testimony you’re going to give, or what a witness will recount, your lawyer is thinking about more big picture procedural issues that could ultimately determine the success or failure of your appeal:

  1. Preserving issues: If you don’t raise it at the trial level, you waive it at the appellate level. Only in a limited number of circumstances will the appellate division hear a new issue that was not raised before the trial court.
  2. Objections: Your lawyer will need to make sure he/she putting everything you believe that the opposing party and the judge are doing incorrectly. You need to ensure that you have a record of the proceedings. Remember, if you don’t raise it, you waive it. This will also require the lawyer to be a bit pushy about getting rulings from the judge on the record.
  3. Appropriate motions: If you ultimately appeal on an evidentiary issue or other legal issue, your lawyer needs to have filed the appropriate motions in advance. For example, if you have a problematic expert report, you can’t go through the whole trial without ever having filed a motion in limine to exclude it. Or maybe there are documents you could have requested in advance that could have changed the trial court’s mind. The appellate division may question your lawyer as to why these things were not done and it may ultimately ruin your chances of a successful appeal.
  4. Presentation of a clear story: Your lawyer will need to have a theme of your case, to tell a complete story of exactly what happened during the trial court proceedings. Because there is no new evidence or facts presented on appeal, and the appellate division will never hear from the litigant through testimony or otherwise, your lawyer will need to synthesize all the details to humanize your issues.

So, if it feels like your lawyer is being over inclusive, he/she probably is, but you’ll be grateful later on that someone had the foresight to preserve your rights.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

When a trial court’s decision is published, we know it’s time to listen.   T.M. v. R.M.W. is a good reminder that definitions modernize with our modernizing society, even when dealing with terms and concepts that we use in our daily practice. In this case, the court opined about two integral parts of a domestic violence matter:

  1. Underlying relationship to qualify for a restraining order; specifically, the definition of “dating relationship”.
  2. Defending against the underlying act alleged in support of the restraining order; specifically, the affirmative defense of consent against assault and harassment allegations.

In T.M., the parties sporadically engaged in consensual “rough sex” over the course of eight years, with a three years hiatus.  Their encounters included hair pulling, slapping and choking. The parties did not have any ground rules, either verbally or in writing.

The plaintiff obtained a Temporary Restraining Order (“TRO”) two days after the defendant punched her with a closed fist during a consensual sexual encounter.  The parties continued having intercourse after the incident – for approximately 20 minutes as the plaintiff acknowledged.  What happened next is where their respective sides of the story begin to change.  In the initial complaint, the plaintiff claimed that when she told the defendant not to punch her again, he laughed it off and then punched her again during this encounter.  During testimony, the defendant claimed that they only had the discussion after the intercourse and he agreed to never punch her again before leaving her house, and he anticipated that they would continue with their relationship going forward.

Dating Relationship

Neither party defined their relationship as dating in the traditional sense during their testimony.  Additionally, the parties did not hold themselves out to the public as having a relationship. In fact, the defendant hid these encounters from his girlfriend and the only time that the defendant appeared at the plaintiff’s home uninvited was after the plaintiff told his girlfriend that the defendant cheated on her.

Utilizing the dating relationship factors defined in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), which we often take for granted when checking off that box on a restraining order, the court allocated the most weight to the length of their relationship, the intimacy involved and the catchall factor as to the uniqueness of their relationship.  Notably the court found:

For the courts to deny this plaintiff victim status could potentially been seen as morally judging a plaintiff who chooses not to engage in a relationship with ‘traditional’ and ‘observable’ indicia of dating.

Additionally, the court opined that a plaintiff enduring abuse in a secret relationship may be even more vulnerable than in a traditional dating relationship.  Thus, the plaintiff prevails on this prong.

Consent

This aspect of the case turned primarily on credibility to determine whether the plaintiff consented to the alleged punch, especially after both parties acknowledged consent for the slapping, hair pulling and choking that would have otherwise qualified as harassment by offensive touching and assault. Although the parties’ testimony differed about the conversation regarding the punch at the end of their encounter, they both acknowledged that they continued engaging in consensual sexual intercourse thereafter.

The court initially found that the plaintiff was credible, noting her candor about the parties’ relationship. However, the defendant became the more credible party after his testimony successfully disputed the plaintiff’s claims about a prior history of domestic violence, which did not exist,  the parties’ conversation after their sexual encounter that evening, and the second punch alleged in the plaintiff’s initial complaint. The court found the defendant so credible that it even repeated his term for the punch as a “tap on the jaw”, after reviewing the stipulated discharge instructions from the plaintiff’s visit to Urgent Care, pictures of the plaintiff’s face on the day of the incident and two days later, and noting that the plaintiff did not have any visible marks during the trial that occurred ten days after the incident.

Erring on the side of caution, the court determined that the issue of consent was a “close call” and analyzed the second prong of a domestic violence analysis, namely whether a Final Restraining Order is necessary. Again turning to credibility, the court determined that the FRO is not necessary to protect the plaintiff and that an FRO cannot be entered to protect the “general public” despite the plaintiff’s (unsubstantiated) claim that other women should be protected from the defendant.

Take-Away

While the plaintiff did not prevail on obtaining a FRO in this sound decision, she did prevail on making a mark in our legal system that traditional relationships are not the only ones requiring attention and protection.  Perhaps this will lead the way to a victim of domestic violence in a private, non-traditional relationship to come forward with his/her story and seek protection.


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Going through a divorce is one of life’s greatest disruptions. Whether you are resistant to the divorce and it feels like a tragedy or you are initiating the divorce and it feels like an escape, there is no doubt that divorce creates a massive change in your family life, finances and day-to-day routine.  At its core, divorce is the process of going from “we” to “me” which can be daunting, exhilarating or something in between. Many clients going through a divorce ask: when can I start dating and how will it affect my divorce?  The answer is never black and white, as dating during a divorce can have its pros and cons.

people holding sign pros

  1. Dating is a much needed distraction during divorce

For all parties involved, the process of getting divorced is difficult. Divorce can turn your life upside down, add new stressors to an already hectic life and create a financial burden that wasn’t there before. Your spouse, the court (and yes, sometimes the lawyers) can at times be frustrating. It is perfectly normal to want to forget about your divorce and take a break from it, even if it’s just for an evening. Dating can be a much needed “vacation” from the reality of divorce.

Many divorcing couples do not go from marital bliss to divorce court overnight, and it may have been a while since you’ve had a positive romantic experience. Dressing up for a night on the town with an uncomplicated new partner is sometimes just what the doctor ordered. Spending time with a new, exciting person can be a wonderful distraction from the messy, tortured history of your marriage.  This breath of fresh air can give you the reprieve from the drama that you need to forge ahead in your divorce.

  1. Taking control of your dating life is empowering and can boost self esteem

Divorce can make a person feel unappreciated, undesired and out of control. Whether you did not want the divorce, or you don’t like a decision a judge has made, it can be unnerving to feel like you have a diminished say in what happens in your life. Dating can put you back in the driver’s seat of one area of your life, and provide some semblance of control. The positive benefits of a “clean slate” cannot be understated.  Stepping out with a new partner who finds you desirable and engaging, unburdened by the complications of parenting and finances that can come with a marriage, can work wonders for your mental health and sense of self-worth.  After long periods of battling with your spouse, it can be exceptionally refreshing to spend time with someone who is nice to you! Getting back in the game and feeling pursued and appreciated might be the ego boost you need to power through an unpleasant divorce.

  1. Embracing positivity can set the scene for a rational and amicable divorce

When you are in a bad place mentally, it is difficult not to make emotionally-charged decisions. Strategizing in a divorce based on emotions will position you and your spouse further away from resolution and, in the end, cost you more time and money.  While it may feel good to exact revenge or act out of spite, in the long term, it will likely only make your divorce that much more protracted and painful.

When you are in a good place mentally, you can more easily make decisions based on reason and practicality. You will feel less incentivized to hurt your spouse or be vindictive. In many cases, your approach to the divorce will shape your spouse’s attitudes, after all, no one wants to play the villain, but people are all too happy to take the gloves off when their spouse is already playing dirty. Dating may make you happier, which in turn, will enable you to approach your divorce with a level head and amicable attitude to create a more pleasant experience for all those involved.

holding sign cons

  1. Dating may fan the flames of acrimony between you and your spouse

While dating may make you happier, it might spur feelings of anger, jealousy or resentment in your spouse which will promote an ill-will in your divorce proceedings.  In this regard, you know your spouse best, and can gauge how they will react to you reentering the dating world. If you believe that dating again will cause your spouse to fly off the handle, be warned that it will likely lead to your spouse taking less reasonable positions and being more litigious in your divorce. In this sense, dating can backfire – as you are trying to move on with your life, your spouse may dig his or her heels in further, dragging out the divorce even longer as a result.

  1. Your kids might freak out

If you have children, you should give serious consideration to their thoughts and feelings before you start dating.  Without a doubt, your children’s lives will change drastically as a result of a divorce and they will likely mourn the loss of your family unit.  Do your children hold out hope that you and your spouse will reconcile? Have they (or are they old enough to) express their emotions about the divorce? Do they have the assistance of a family therapist or mental health professional to guide them through this process? All of these things must be considered before you throw another curveball into the family dynamic.

With regards to the legal implications of dating, how involved your new partner becomes with your children may have an effect on a custody battle between you and your spouse.  If custody experts are involved in your case, they will interview collateral contacts (including your new partner) as part of the evaluation and his or her past can affect the outcome of your case! A new partner with a criminal record, substance abuse or certain mental health issues can be a red flag for a custody evaluator (especially if they are around your children a lot) and may impact the custodial issues in your divorce.

  1. (Serious) dating might affect your spousal support

Most people who start dating after a divorce are in no rush for a big commitment, but some find it easier to cope with a divorce by jumping right back into a serious relationship.  You may lose your alimony if you are cohabiting with a partner in a marital-type relationship. Accordingly, you need to remain cognizant of how living with your new partner may affect the amount of alimony you receive in divorce or whether your ex-spouse can make an application to terminate alimony based on your cohabitation after divorce. It is important to note that this is a one-sided consequence. If you are paying alimony, feel free to date to your heart’s content – it won’t affect your obligation to pay your ex-spouse alimony.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

Last week, I blogged about whether you should settle your retirement alimony case and the ingredients that might go into that decision. To be honest, this “why you should or should not settle” question is only the beginning of what you might be facing when you decide it is time to retire and terminate your alimony obligations. There is, of course, also the “where/when/how” of all of it. And that’s quite a nebulous concept if you’re only now beginning to think about your “whys” and whether or not you should even broach the topic. Below, I’ll give you a run-down of the possible scenarios that will at least address the “wheres” and “whens” of your journey.

In my experience, there are several possible ways in which alimony cases resolve: (1) Immediate settlement; (2) settlement following a motion; and (3) a full Court hearing wherein a judge makes a decision as to your continued alimony obligation. Examining each scenario will allow you to put the concept of “settlement” into the context of your particular situation.

(1)         Immediate Settlement: This is the path of least conflict and resistance if your spouse accepts your offer with an eye toward a termination of support. This will, more often than not, begin with a “feeler” letter to your former spouse. The letter may indicate that you are retiring, the date of your proposed retirement, provide some detail as to your financial circumstances, and ask if a termination of alimony would even be considered. Sometimes, the former spouses may negotiate directly with one another, with guidance from an experienced matrimonial attorney throughout.

If successful, this is the most cost-effective and low conflict resolution. The specifics of any settlement would be memorialized in an Agreement and simply filed with the Court, at which point, it would become an enforceable document.

But don’t be mistaken. This path is not for everyone. If you went through a very high conflict divorce, or know you’re dealing with an unreasonable ex-spouse, you may want to skip this step entirely. In the alternative, you may write a letter and the concept of termination may be rejected immediately.

If settlement at this early stage is not successful for whatever reason, you may decide to pursue litigation. That would bring us to scenarios 2 & 3, described below.

(2)         Filing a Motion: To provide some background, when someone paying alimony experiences a change in circumstances (including retirement, other reduction in income, or they believe their spouse is cohabiting etc.), you file what is known as a “Motion”, which is a formal application to the Court. You would be required to submit your current Case Information Statement, Case Information Statement from the time of your divorce, tax returns and a narrative of events leading up to your motion and describing your circumstances along with the motion.

You further file a legal brief describing the case law, including Lepis v. Lepis, which is the seminal support modification case in the state of New Jersey. Under Lepis, an alimony payor is required to file a Motion and establish what is known as a prima facie change in circumstances. A prima facie showing is simply an initial showing (on its face) that demonstrates that circumstances have permanently and significantly changed such that alimony may ultimately be modified.

Several weeks later, you would proceed to Court. This is a formal court proceeding, with oral argument from counsel, but not testimony of the parties, no formal introduction of evidence, etc. In other words, it is not at the point where the Court would conduct a full trial yet based on what has been submitted.

The Court would then review everything and determine if you meet the burden of a prima facie showing. The Court will then move you past what we call “Lepis 1”, or the initial prima facie showing, and enter an order as to whether you should move to a “Lepis 2” analysis – i.e. whether the change is substantial, continuing and permanent. As part of this analysis, the Court may also consider whether there is sufficient reason to award counsel fees to either party in connection with the motion. Because a supported spouse’s financial circumstances may be more precarious than yours, the Court may be inclined to grant counsel fees to equalize the playing field or to provide her an advance for litigation.

During the discovery phase, you are permitted to do a full examination of the other party’s finances to try and substantiate your claim. This includes written discovery, depositions, subpoenas, etc.

Typically following or during discovery and related proceedings the matter may settle. The parties have exchanged the majority of their discovery and the payee spouse, at some point, realizes alimony will end and that some concessions will need to be made. At that point, the parties will come to the table, make a settlement offer which is negotiated or reach a resolution through mediation (sometimes the Court will order the parties to go to mediation).

(3)         Court Hearing:  The matter can sometimes move toward a more contentious conclusion via a court hearing. In that regard, if all possibilities for settlement are expended and the parties have passed the discovery phase, the matter proceeds to a hearing, and the Court will hear testimony, consider evidence and make a determination based on everything before it. It is akin to a trial.

Keep in mind that neither party is obligated to agree to an out of court settlement. But as you can see, settlement at the early stages of the games provides finality without having to subject yourself to the time and effort of full-blown litigation. You also would avoid the counsel fees that go in to the discovery and litigation phases. Of course, having counsel on your side with experience in retirement alimony case will help you reach a conclusion on your terms.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

There has been much ado about the new alimony statute. Obligors believe they are now in the driver’s seat when it comes to disposing of their alimony obligations. After all, the statute sends a message that alimony should at least be modified upon reaching full retirement age. Doesn’t it?

On the other hand, recipients believe that the nuances within the new statute provide them with a leg-up in terms of maintaining their alimony awards “as is”. After all, the statute provides that both parties should have been able to save for retirement in the years since the divorce. Doesn’t it?

The truth is, both the obligor and the recipient are correct. The new statute does not provide any bright line rule as to what a court must do when the obligor retires. It provides the Court, instead, with factors to consider and weigh when an obligor brings a retirement application.

It helps to think of your retirement case as if there is an imaginary chef baking a cake. The ingredients and proportions will inevitably change your end result. Likewise, every case has different ingredients and produces a different result. Of course, the chef, i.e. the judge, will also bring certain ideas into the case, that could change the result one way or another depending on the “ingredients” the litigants bring before the Court.

So that brings me to my question: should you settle your retirement case? In a word, maybe.

When I become involved in a retirement case, I tell obligors and recipients alike to think of their matter as a business transaction. Typically, most of the hurt that lingered post-divorce has dissipated. Maybe, the parties have moved on with their personal lives. Most people are ready to engage in a pure cost-benefit analysis to determine if settlement is right for them.

In order to do that in a retirement case, although a bit fatalistic, it’s important to consider the health and life-span of the obligor and recipient. For example, if a retirement application is brought when both parties are 80, a settlement would look quite different than an application brought at age 65.

It’s also important to consider the parties’ respective assets so that a lump-sum buyout can be considered and discussed.

Sometimes it bears repeating that it’s important to remember that it probably does not make sense to spend more money litigating a case in Court than you would have continuing to pay or receive alimony. Because, at that end of the day, even if you believe that you have the best ingredients and proportions, you don’t want to burn the house to the ground just to see if you can get the perfect cake in the end.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com