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

Going through a divorce can be one of the most stressful and emotionally difficult experiences you will ever go through in your life.  Everything that you know is about to change in a dramatic way, and even getting started can be a daunting task.  After having recently blogged about who you can turn to when the divorce is over, here are five things to consider when preparing for the divorce process set (not surprisingly to those who know me) to some of my favorite Pearl Jam song titles and lyrics:

  1. The “Wishlist”:  When setting forth down the path of divorce, know what you are looking to walk away with when it is over.  Maybe you want to retain the marital home so that you can continue living the with the children, or perhaps your primary focus is on the children’s college education.  Maybe you are more generally focused on simply ensuring that you will be able to live some semblance of the lifestyle you once knew without worrying every single day about how you are going to pay your bills while trying to get back on your feet.  Lindsay Heller’s recent blog post about making your custody and parenting time wish list is also great place to start.  Knowing where you want to go and how you are going to get there on all issues will help focus you on what matters most in your divorce matter.
  2. “All that’s sacred comes from youth”:  Do what you can to ensure that the children’s best interests are protected and safeguarded from the outset of the divorce until its conclusion.  If there is no filed divorce action and you are attempting to privately resolve your divorce without an active litigation, consider talking with professionals (therapists, counselors and the like) to learn how best to parent your children during the divorce.  If there is a filed divorce action in the court system, not only should you still consider consulting with such professionals, but also you will be required to undergo New Jersey’s Parent’s Education Program, which, among other goals, is designed to help parents better understand what the children are and will be going through during a difficult time.
  3. Find the right “Fixer”:  The divorce process can be beyond overwhelming for countless reasons.  When searching for a divorce attorney, consider not just looking for someone who is experienced in family law.  Also consider retaining an attorney who you feel comfortable talking to.  Who you can trust.  Who you can confide in and discuss certain aspects of your life and your marriage that you may not ordinarily feel comfortable speaking about with anyone else.  Who is responsive and reliable.  Who can ultimately advocate for you in the way that you believe best serves your interests and those of your children.  Who will listen to you and be mindful of what you are looking to achieve.
  4. “Saw things so much clearer”:  Many financially dependent spouses have no idea what assets or liabilities make up the marital estate.  Perhaps the financially superior spouse always paid the household bills.  Perhaps all assets and accounts are only in that same spouse’s name.  All of a sudden you, as the dependent spouse, are tasked with figuring everything out so that you can simply determine what you may or may not be entitled to in the divorce.  Determining as early on in the process as possible what incomes, assets and liabilities exist will provide you and your divorce attorney with a clearer understanding of the picture that is your marital estate and how it should be distributed.  In so doing, it is best (if possible) to get together the financial documents underlying the incomes, assets and liabilities, such as income tax returns, account statements, bills and the like.
  5. “The waiting drove me mad”:  As I have previously blogged, patience in a divorce proceeding can be a tremendous virtue.  There are so many factors beyond your control that can delay the matter’s conclusion that you can easily and understandably become frustrated and more willing to surrender to an inequitable settlement.  As a result, it is best to concern yourself with what you can control.  As indicated above, get your information and documentation together for your divorce attorney.  Timely comply with court deadlines.  Present reasonable settlement positions and if settlement cannot happen, do what is necessary to prepare for trial.

Commencing the divorce process, let alone going through the process to conclusion, may feel like you are at the foot of a mountain without the equipment necessary to even begin scaling its face.  The process and all of the emotions that go along with it, however, will hopefully be made easier when taking the above detailed steps into consideration.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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*Photo by Lugnuts (talk) – I (Lugnuts (talk)) created this work entirely by myself. Photo from Pearl Jam show dated 17th August 2009., CC BY-SA 3.0, https://en.wikipedia.org/w/index.php?curid=24027300

33625628 – a couple of lawyers arguing a case in front of the judge

When you have to be in court, it can be a nerve-wracking experience.  As a lawyer, I frequently visit courthouses and judges statewide. But that’s me and not you! Here are some things to keep in mind for your appearance…

  1. Dress appropriately. Suiting is not required for litigants, but please do not show up in shorts and a golf shirt. Your attire shows respect to the formality and solemnity of the process.  Think business casual.
  2. Be on time! Except for the uncontrollable emergency or traffic delay, you should be there on time. Judges do not like to be kept waiting.
  3. Check your emotions at the door. This is not the time nor the place to let out that tirade you have been saving up.  Keeping your cool, if that means keeping your distance, is of the utmost importance.  Practice your poker face, deep breathing, and happy place – whatever will get you through.
  4. Do not bring an entourage. In some situations, one companion is acceptable.  Generally speaking, you need to face this on your own. Please, please, please do not bring a new significant other or the one person in your family that your spouse hates. This only exacerbates an already stressful situation.
  5. Do not bring your children. A courthouse is no place for children.  Especially when the visit has to do with their parents’ divorce.  Again, there are limited exceptions to this but unless you are told specifically by your attorney that you fall into one of those exceptions, do not do it.  If you have childcare issues, let your attorney know so they can coordinate.
  6. Pay attention. Everyone deals with stress differently.  Some people check out in stressful situations.  Try not to do this.  Listening to what the judge and attorneys have to say about your case is important.
  7. Ask questions. If you feel like you are missing something, do not be afraid to speak up.  A good attorney wants their client to understand and meaningfully partake in the process.
  8. Expect to be there all day. Unlike television, court is rarely a quick and neat visit.  In every county in New Jersey, judges, staff and court administration handle thousands of files.  Emergencies happen at the courthouse.  Things take longer than anticipated.  Interruptions happen.  You or your attorney cannot control these circumstances.  Plan for the worse and hope for the best!
  9. You might be left waiting alone. It is not uncommom for a judge to ask to speak to the attorneys alone in chambers.  There is no secret plotting happening behind closed doors.  Judges often use these meetings to help get a better feel for a case or to express some concern they have so that issues can be addressed efficiently and with sensitivity.  It can be a good thing for your counsel to have this opportunity to speak freely to the judge handling your case.
  10. You’ll likely have to come back. It is rare that you only have one court appearance in a family law matter.  There are several mandatory appearances in a litigated case.  Be prepared for these.

Sandra C. Fava, Partner, Fox Rothschild LLPSandra C. Fava is a partner in the firm’s Family Law Practice, resident in its Morristown, NJ office. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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A few months ago, I posted a blog “Mind Your Manners” about how a party’s attitude may play a role in a judicial determination.  This issue arises again in the recent unpublished decision of Sahai v. Sahai, confirming again that credibility is key in litigation.

In Sahai, the appellant/ex-husband appealed a trial court orders sanctioning him $20,000 for his failure to bring the parties’ child to court-ordered parenting time with his ex-wife, as well as to pay her counsel fees on multiple applications adjudicated at the trial court level.  The trial court ordered the parenting time pending a plenary (evidentiary) hearing regarding the application of respondent/ex-wife to vacate the Property Settlement Agreement (divorce agreement) in which she agreed to forego any parenting time with the parties’ severely disabled daughter, claiming that her now ex-husband had coerced her into signing the Agreement.

The court ordered the parenting time session to occur for one  hour at a library with their daughter’s medical assistant present.  The session never occurred, apparently for medical issues even though her medical assistant was to be present.  The parties then agreed in a Consent Order to three separate one-hour sessions at the library.  Appellant never complied with any of those visits.  Ultimately, he was sanctioned and ordered to pay Respondent’s counsel fees in multiple orders for which his reconsideration applications were denied.  During this protracted litigation that occurred  between 2014 and 2016 – approximately two years – Appellant also filed criminal charges against his ex-wife that were administratively dismissed, filed a lawsuit against his former attorney that was dismissed with prejudice, and filed a lawsuit against his ex-wife’s attorney in federal court that was also dismissed.  If that’s not enough, Appellant failed to adequately produce discovery, including about his financial circumstances.

So, what happened?  Not surprisingly, the Appellate Division affirmed the trial court’s order for both the sanctions and counsel fees awarded against Appellant.  First, given that he failed to comply with discovery, he was in no position to argue that he could not afford the counsel fees or sanctions.  Second, not only did he defy a court ordered parenting time session, but he then willfully defied a Consent Order in which he agreed to three parenting time sessions.  His ex-wife ostensibly signed the Consent Order based on this representation.  Additionally, the trial court warned him about the ramifications of his actions prior to issuing such orders.

As to counsel fees, the Appellate Division deferred to the trial court, as trial court’s make credibility findings… there’s that word again.  Ultimately, it was Appellant’s “obstructionist litigation” that delayed the plenary hearing for years despite the trial court’s patience. There was no excuse for such actions. He had periods in which he was represented by capable counsel, although he represented himself at times.  The Appellate Division specifically stated:

“Deference should be afforded to the trial court’s factual findings regarding Rooney’s willful non-compliance, his ability to pay, and the reasonableness of counsel fees, all of which are supported by substantial credible evidence in the record. The imposition of sanctions and attorney’s fees was a reasonable exercise of judicial discretion.”

 

Kid counting money

So, here we are again with a willfully non-compliant litigant who refuses to produce adequate discovery and comply with court imposed and agreed upon Orders, now facing judgments of tens of thousands of dollars against him and in favor of his ex-wife.  The decision on the plenary hearing is pending, but it’s possible that Appellant’s behavior at this level may also impact his ex-wife’s claim that he coerced her into signing the Agreement at the time of their divorce and, of course, a counsel fee award.  We have to stay tuned…

With the stress of litigation upon you, please remember that it’s better to be the “bigger person”, follow orders and mind your manners!  That does not mean you have to throw away creative legal arguments to prevail or your right to seek legal remedies when you disagree with an Order – your attorney will guide you down that path.  However, having a good attorney cannot always shield you from your own actions – ultimately you should listen to counsel and, of course, the Court.  Take discovery for example – Is producing discovery fun? No.  Are there sometimes things you do not want to give the other side?  Of course.  But at the end of the day, they will find it or an adverse inference will be drawn against you for your failure to produce it on your own, as in this case where the Appellant lost his ability to argue that he cannot afford the counsel fees or sanctions he was ordered to pay.  Don’t put yourself in that position.


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

When can a litigant appeal an arbitration award? In the recent decision of K.V.H. v. W.S.H., the New Jersey Appellate Division clarified the procedures by which a party, dissatisfied by the decisions rendered by an arbitrator, can challenge those awards.

In this matter, the defendant appealed from certain provisions of a series of arbitration awards which were incorporated into a dual final judgment of divorce.  After over two years of contentious divorce litigation, the parties entered into an arbitration agreement and mediation agreement to try to more efficiently resolve the issues in their divorce. The arbitration agreement specifically provided that it was governed by the New Jersey Arbitration Act, N.J.S.A. 2A23B-1 to -32.

The parties selected a retired Superior Court judge to serve in the dual role as mediator/arbitrator.  After resolving certain issues through mediation, the parties executed a binding mediation agreement and proceeded to arbitration. Two arbitration awards, addressing substantive issues and fees as well as a resolution of disposition of personal property, were memorialized in writing by the arbitrator.  One week following the last arbitration award, the parties appeared in Court to obtain a judgment of divorce.

At that appearance, the mediation agreement, both arbitration awards and the resolution of personal property, were all incorporated into the dual final judgment of divorce.  Both parties were questioned about the fairness of the agreements and their decision to proceed with a divorce on that day.

Specifically, the defendant was questioned about whether he freely and voluntarily entered into the arbitration agreement, whether he agreed to incorporate the mediation agreement, arbitration awards and resolution  (collectively referred to as the “agreements” during questioning) into the judgment of divorce, and whether he believed the agreements to be fair and equitable.  The defendant answered in the affirmative to all of those questions.

Further, the defendant was asked to confirm that he understood and was not waiving any rights and remedies under the New Jersey Arbitration Act.  The defendant likewise answered “yes”.

confirm arbitration agreement

The Court ultimately found the parties entered into the arbitration agreement freely and voluntarily, and entered a judgment of divorce incorporating the agreements. Importantly, at no point during this proceeding did either party raise any objection to the arbitration awards or ask the Court to vacate, modify or correct same.

Days later, the plaintiff filed a motion to enforce the fee award.  The defendant then filed his notice of appeal.  Subsequently, the defendant filed a notice of cross motion (to plaintiff’s motion) to vacate the fee award. The trial court refused to rule on the cross-motion because of the pending appeal, and entered an order directing enforcement of the fee award.

The Appellate Division dismissed the appeal for lack of jurisdiction pursuant to the New Jersey Arbitration Act.  Specifically, the Court found that the Act limits judicial review of arbitration awards to three distinct scenarios: confirmation, vacation and modification/correction.  Under the Act, there is no direct right to appeal, but a litigant can appeal the trial court’s order on a summary action to confirm, vacate or modify/correct. Accordingly, the trial court must review the arbitration award in a summary action to confirm, vacate or modify/correct and enter an order before a litigant can file an appeal.

The manner by which the defendant challenged the arbitration award in K.V.H. v. W.S.H. was procedurally deficient in several ways.  First, by incorporating the arbitration awards in an uncontested hearing, the Court took no testimony on the substance of the agreements. There was no summary action to confirm, vacate or modify/correct the agreements.  Though the parties agreed to “confirm” the awards and incorporate same into their judgment of divorce, no such order “confirming” the awards was entered by the Court.

Second, the defendant filed his appeal before filing a motion to vacate the award. Accordingly, at the time he filed his appeal, there was no trial court order from which he could appeal.  In so holding, the Court relied upon the plain language of the Act itself as well as the case of Hogoboom v. Hogoboom, which provides that parties are not “entitled to create an avenue of direct appeal to this court”.  Had he filed his cross-motion to vacate and appealed from a subsequent order, the end result in this matter may have been different.

On appeal, the defendant argued that all parties and the trial court understood he was agreeing to entry of a judgment of divorce with the express intention to immediately appeal the arbitration award.  The Appellate Division’s categorical rejection of this argument, and the lesson therefrom, is quite clear.   Strict construction of the Act is required.  Absent a trial court order which expressly confirms, vacates, modifies or correct an arbitration award, a party to an arbitration award has no direct right to appeal.

Arbitration can be an attractive option for litigants for a number of reasons, including the ability to select an arbitrator of your choosing and greater flexibility in controlling the calendar and timing of your case.  However, litigants who seek arbitration as a means of limiting judicial involvement with their case must accept the other side of the coin, and recognize that limited judicial review is one of the tradeoffs for taking your matter out of the court system. This case serves as a reminder for that concession.  That said, parties can also negotiate appellate arbitration if they want to preserve the right of appeal, albeit not to the Court.

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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.

Several years ago I did a post on this blog of the same name and then updated it some time later. The list then, as re-compiled below, are things to do if you really don’t want to settle your case.  As I said before, everybody is entitled to their day in court if they want it, but what if there is nothing that can be gained from it?  What if you can’t win?  What if forcing the matter to trial will create other legal issues? What if trial will cost tens of thousand of dollars or more?  Here is the list:

22. Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.

21. Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.

20.  Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.

19.  Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.

18.  Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.

17.  Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.

16.  Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.

15.  Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.

14.  Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way.

13.  In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.

12.  Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.

11.  Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

10.  Ignore your expert’s advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know?

9.  Ignore your lawyer’s advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn’t make sense.  Plus, how can they prove if you’re lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no “horse in the race” are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn’t apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse’s attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim “Pigs get fat, hogs get slaughtered.”  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don’t worry that this conduct may set your case back.

The above was and is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 is resident in Fox Rothschild’s Morristown, 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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Most clients hire their lawyers for the lawyers expertise and experience.  There is an expectation that the lawyer will guide the client through the process, given them the strategic options, and counsel them regarding settlement positions and opportunities.  Sometimes, client’s hire lawyers that they think they can control, who will do their bidding whether or not the strategy is sound or the legal position meritorious.  Others still, hire their attorneys because of their expertise and experience, yet cannot help themselves and seek to control every detail.

While often, collaboration with a client can create excellent results – after all, who knows the details of their life better then the client.  That said, there is a difference between collaboration, and the client imposing her or her will on the aspects of the case that should be the domain of the attorney.  Even when the client is an attorney, it is dangerous if they think that they know better then their attorney how to present their case.

Several years ago, I represented the wife of an attorney in particular – a litigator.  At a very early mediation, he came into the room boasting, if not threatening that he has tried more cases than anyone in the room.  Throughout the case, he made his lawyer take legally unsupportable positions, played games with discovery, tried to hide assets, failed to provide full information to his own forensic accountant and then, at trial, clearly directed his attorney’s questioning of the witnesses.  Needless to say, after an 11 day trial, he was crushed on every issue.  Moreover, his conduct both before and after the trial caused him to pay a substantial amount of his wife’s legal and expert fees.  His attorney was made to look bad and his forensic accountant was essentially called a liar – albeit in nicer terms – all because of the husband thinking he knew better than anyone else.

I am presently involved in another long trial where it is clear that the opposing litigant is running the show.  His direct examination was unusually long and contained numerous self created exhibits that were testified about in unnecessary detail.  Moreover, the same was true for the expert testimony, both direct, and more importantly on cross examination.  The client created questions at best, unduly lengthened the process, and at worst, could arguably hurt both his own credibility and credibility of his own expert.  Aside from causing the cost of the matter to increase exponentially, the insistence on controlling the questioning could actually negatively impact his case.

The bottom line is that client’s should be careful to not insist that collaboration turn to actual control thereby negating their attorney’s experience and expertise.  While it is not unusual to want to maintain total control, the attorney usually knows the law better and can better implement the jointly agreed upon strategy. The attorney will have a better sense of the big picture and is better able to view things more objectively than the client.  Sometimes less is more.  Not every question needs to be ask.  Not every fact needs to be presented if it doesn’t help, or perhaps can hurt your case.  If one of the allegations is that the spouse is overly controlling, etc., the controlling conduct at trial can prove that point almost better than the other spouse’s testimony.  In short, a client should be careful when insisting on taking over a case from his lawyer.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 is resident in Fox Rothschild’s Morristown, 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 often, if not always ask at the start of my representation how long the divorce process is going to take, and my answer is almost always the same – it depends.  No one wants to or enjoys going through a divorce, especially one that may last for months, if not longer than a year.  Having information as to when the divorce process will end or what may prolong its conclusion can be helpful to you in not only planning for the future (from both financial and child-related perspectives), but also in mentally preparing you for when you may be able to move on and move forward.

With that being said, here are four things that may impact upon the length (and cost) of your divorce proceeding:

  1. The Other Party:  If you and your spouse are on the same page in trying to move towards an expedient, fair and cost effective conclusion, then work together in achieving that goal.  Consider suggesting a settlement conference, mediation or even offering a settlement process early on in the process.  While the matter may not immediately settle, it may crystallize what issues are really in dispute, and what can be quickly resolved.  If, however, your spouse does not want to get divorced, or is, perhaps, having a difficult time in moving forward (or allowing you to do so), then the process may take far longer.  In addition, if your spouse engages in some form of misconduct during the divorce, motions may have to be filed, emotions often escalate and the process will often take longer than previously thought.
  2. The Other Attorney:  Who is the other lawyer?  Is he or she known for being reasonable and settlement minded, or aggressive at every turn?  Are there going to be genuine efforts to resolve the matter early on, or are you going to be litigating about every issue imaginable?  Unfortunately you cannot control who your spouse hires to act on his or her behalf, but the potential impact of who the other lawyer is on your case is oftentimes known and predictable at the outset of your matter.  At the very least, knowing who the other lawyer is and how he or she practices often allows you to set your expectations for how the entire matter may unfold.
  3. The Issues:  The duration of your divorce proceeding will also be impacted by the issues in dispute.  If you have a straightforward matter, with easily understandable and resolvable custody and financial issues, the matter should resolve sooner rather than later (depending, of course, on the other party, the other lawyer, and the county where your case is held).  A more complicated case, however, may take longer simply so that certain issues can necessarily be examined in more detail.  Perhaps there is a business to value, or a custody dispute requiring experts.  Engaging in what may be necessary expert work will take time, but oftentimes has to be done.
  4. The County:  Certain counties in New Jersey have more cases than others – it is as simple as that.  With a huge volume of matters and only so many judges working tirelessly to get through them, your case may not move as fast through the court system as you would like.  While the court system will ensure that you are moving forward and, at the very least, engaging in settlement efforts through mandated custody/parenting time mediation, the Early Settlement Panel, economic mediation and intensive settlement conferences, oftentimes the length of your proceeding can be impacted simply based on the volume of the court’s calendar.

The above considerations are all the more reason to consider alternative dispute resolution methods in an effort to get your matter resolved.  Settlement conferences, mediation, and even arbitration may expedite the conclusion of your matter in a more cost effective fashion.  Moving on and moving forward may take time, but knowing what may stand in your way is important to providing you with some sense of when it is going to end and, perhaps, some peace of mind.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

 

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