A new domestic violence decision, M.D.C. v. J.A.C., not only confirms that defendants in a domestic violence proceeding are entitled to due process, but also goes a step further by asking the Supreme Court’s Family Practice Committee to determine whether the should require judiciary staff and law enforcement to inform and review with defendants the allegations against him/her, as well as what to expect at a Final Restraining Order (“FRO”) hearing.  In the manual’s present form, such explanations are only required for the plaintiff.  This suggested update confirms that each party is entitled to reciprocal due process and to be informed of their rights to present evidence, testimony and witnesses, as well as to seek adjournments if additional time is needed to prepare his/her case.

In M.D.C., the trial court treated the defendant in a particularly egregious manner during an FRO hearing in which it entered an FRO against the defendant.  Although the plaintiff had the opportunity to present her witness, the trial court did not offer the defendant an adjournment when her only witness (her mother) was unavailable on the trial date, nor did the court advise the defendant of his right to seek such adjournment when she explained her witness’ unavailability.  Additionally, while the plaintiff was given the time to present her testimony and even “prompted”by the court to testify about prior acts of domestic violence outside of the four corners of the complaint, the trial court repeatedly disrupted the defendant’s cross-examination of the plaintiff and required the defendant to limit her questions to the domestic violence complaint.  Ultimately, the defendant ended her cross-examination out of frustration.  This is especially material because the FRO was entered in part on credibility determinations that the defendant was precluded from exploring without justification.  Finally, although it seems the plaintiff was able to present her case in the manner desired with assistance from the trial court, the trial court precluded the defendant from introducing photographic and video evidence, which the defendant claimed refuted the plaintiff’s testimony, without making any findings on the record to support this preclusion.

The Appellate Division reviewed the long-standing history of a defendant’s due process rights in New Jersey domestic violence cases and, in part, general litigation, including, without limitation,  (1) a defendant’s due process are violated when he/she is denied the right to cross-examine, which is the “most effective device known to our trial procedure for seeking the truth”; (2) courts should advise pro se litigants of their right to seek an adjournment to call necessary witnesses and the failure to offer and/or grant the adjournment violates due process; (3) the failure to consider evidence without any reason for doing so is also a due process violation; and, (4) while plaintiffs seeking an FRO may amplify their allegations of prior domestic violence history, they must amend the complaint in order to place defendants on notice of such allegations and afford them an opportunity to prepare a defense.

Person with finger on the scales of justice, illustrating concept of divorce

In light of all due process violations in this case, it should come as no surprise that the defendant here is using his soapbox to enhance the rights for all defendants in due process cases.  From a practice standpoint, having interned in the domestic violence courts of Essex County while in law school and then observing such hearings as a law clerk in Union County, and now appearing often in such courts throughout northern New Jersey, it is undeniable that a significant amount of these hearings occur between pro se litigants on one or both sides.   If the plaintiffs are the only party who are advised in advance of their rights and how to conduct themselves at an FRO Hearing, a defendant can argue that the plaintiffs are automatically receiving the upper hand at trial.  Although the domestic violence defendant is not facing a criminal conviction (at least at the FRO Hearing), the defendant’s rights are severely impacted by having an FRO entered, including having their name on a national registry that can impact future employment, support obligations, custody and parenting time determinations, prohibitions from carrying/owning weapons that were legally procured, which can also impact employment, etc.  Criminal defendants are required to be advised of their rights and, perhaps, so too should a domestic violence defendant.

It will be interesting to see if the Manual is in fact updated.  Stay tuned…  Either way, if you are representing yourself, whether you are the plaintiff or the defendant, make sure to inform the court of any true impediments you may have to begin trial on a date provided, such as calling a witness or procuring evidence, prepare a thorough cross-examination of the other party’s witnesses and insist on your right to explore credibility and all issues raised by that witness on direct, and have your evidence pre-marked and a proffer ready to explain to the court why it should be entered.  This does not guarantee success, but it will help with a fair chance.

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

In the wake of the September 10, 2014 amendments to N.J.S.A. 2A:34-23, the legislature clarified the circumstances under which an alimony payor’s obligation can be modified or terminated due to the obligor’s intended or actual retirement.  Under the statute as amended, when faced with an obligor’s application to modify or terminate alimony due to good faith retirement, the Court must consider the question of the alimony recipient’s ability to save for his or her own retirement.  As discussed In the new unpublished (non-precedential) Appellate Division decision Stansbury v. Stansbury, this question is given much greater weight in pre-Amendment cases (i.e. in cases that were decided or agreements that were entered into prior to September 10, 2014).

For post-Amendment cases, there is a rebuttable presumption that if a payor retires at “good faith retirement age” (defined as the age at which (s)he would be entitled to receive full Social Security Retirement benefits), then alimony shall terminate unless the recipient can show by a preponderance of the evidence and for good cause shown that alimony should continue (either in full or in a reduced amount).  In making that determination, the court must consider eleven (11) factors, one of which is the ability of the recipient to have saved adequately for retirement.  See N.J.S.A. 2A:34-23(j)(1).  This factor is listed along with the ten other factors, in no order of importance, with no emphasis whatsoever.

But for pre-Amendment alimony awards (like the Stansburys’), the statute does not just list the obligee’s ability to save for retirement as one of many on a list of factors to be balanced and considered.  Instead, it absolutely mandates and even elevates this criteria first and foremost among the others:

When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age.  Upon application by the obligor to terminate or modify alimony, both the obligor’s application to the court and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.  In making its decision, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:

(a)  The age and health of the parties at the time of the application;

(b)  The obligor’s field of employment and the generally accepted age of retirement for those in that field;

(c)  The age at which the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d)  The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

(e)  The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f)  The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part time or work reduced hours;

(g)  The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

(f)  Any other relevant factors affecting the parties’ respective financial positions.

N.J.S.A. 2A:34-23(j)(3) (emphasis added).

In Stansbury, the Defendant had a permanent alimony obligation but, at the age of 72 (well past good faith retirement age), he was looking to retire and made the appropriate application, which the Plaintiff opposed.  Eliciting certain facts from the parties’ respective certifications that accompanied their motions (and, reasonably, hoping to avoid the time and expense of a trial for two litigants with modest means and of a senior age), the judge addressed each of the factors listed above, including the question of the Plaintiff’s ability to save for retirement.  She found that – based on what the Plaintiff certified about a recent health issue and about her income and budget set forth on her Case Information Statement – it was “unlikely” that the Plaintiff had been able to save for retirement.  Based on this assumption and on the remaining factors, the trial judge declined to terminate the Defendant’s obligation and instead reduced it.

The Defendant appealed, arguing that – having failed to conduct a hearing – the trial judge did not have sufficient evidence to make the assumption that the Plaintiff did not have the ability to save for retirement.  In fact, on the question of what had happened to the Plaintiff’s share of Defendant’s pension awarded to her in equitable distribution, the trial judge had essentially taken a guess that the Plaintiff had liquidated her share of that marital asset and spent it while she was not working due to her recent illness, or else re-invested it.  There was no testimony in the record from the Plaintiff herself as to what she had done with this money.  The Appellate Division found that the trial judge’s failure to make findings after a hearing as to the issue of the Plaintiff’s ability to save for retirement was an error, and remanded the matter to the trial court, instructing that:

The hearing should require plaintiff to come forward with evidence that she saved for retirement to the extent she was able to do so, and how plaintiff disposed of her share of defendant’s pension.

The case makes clear that for pre-Amendment alimony awards in particular, trial judges not only have to consider this factor, but must give it great weight.   Therefore, litigants opposing retirement applications in pre-Amendment cases should be prepared to address this in great detail.   Additionally, the Appellate Division’s instruction to the trial court quoted above in the Stansbury case certainly suggests that whether an obligee has actually saved for retirement is not the important thing that courts must consider in these applications, but rather whether the recipient COULD HAVE saved for retirement based on his/her income, assets inclusive of equitable distribution, and the alimony received.  In other words, fiscal irresponsibility on the part of the obligee shouldn’t bar the obligor from making a successful application.

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.

We have all seen cases where one of the parties is unreasonable if not out of control.  I am not talking about taking a hard of aggressive legal position.  I am not talking about taking an aggressive if not unreasonable settlement position – at least to start.  I am talking about a client that refuses to abide by an agreement or an Order.  I am talking about a client that intentionally misinterprets an agreement or an Order because on this occasion, the clear interpretation does not favor her – only to take the exact opposite interpretation the next time when it would be to her favor.  I am talking about someone with oppositional defiance disorder and/or someone who automatically rejects something, even if it is to his or her benefit, simply because it was suggested by the other party or opposing counsel.  I am talking about someone who could either tell the truth or lie, with no greater advantage in lying, but lies anyway.  I am talking about someone that cannot help to put their kids in the middle to hurt their spouse, knowing that they are probably hurting their kids in the process.  There are many other examples I can give based upon my many years as a divorce attorney.

In a perfect world, when this happens, assuming that it is not opposing counsel that is actually causing the problem in the first place, you would hope to be able to tell your client that cooler heads will prevail. Surely you would like to be able to tell your client that opposing counsel will get control of the situation and put the matter back on track, right?  Too often, the answer is no.  Why is this the case?  Sometimes, especially early on, counsel will take their client at face value, without seeking proof or verification.  That is to be expected to some degree though a better practice might be to get more information before going off half-cocked.  But more often than not, that is not the reason at all.  In fact, sadly there are too many practitioners out there willing to do anything that the client wants, without consideration for how it impacts their client in the long run, or their personal reputation.  Don’t get me wrong, I am not suggesting that an attorney should not zealously advocate for their client’s position.  They have to – that is their ethical obligations.  But before furthering the crazy and/or throwing gasoline on the fire, is it not better practice to try and get a situation under control.  Does it really make sense to unprofessionally echo a client’s unfounded attacks to deflect a provable, documented factual account of that client’s misbehavior?  Does it really make sense to let a client take an action or file a certification that will hurt them in the long run?  Though, on the other hand, when a client asks why the other lawyer is doing something in furtherance or defense of the bad behavior or why they haven’t stopped it, I have to remind them that we have no idea what advice the other party was actually given.  Sometimes, it is as simple is that as long as the client is paying them, they will do anything that the client says, no matter if it is good for the client or not.

Again, don’t get me wrong.  There are bona fide disputes.  There are reasons that motions have to be filed.  There are reasons that things need to be litigated.  But there are things that have no business not being brought under control.  When the lawyer absurdly enflames things further and/or defends the indefensible, they become part of the problem instead of being part of the solution.  That is unfortunate for the parties, their children and the system.  More and more, it seems that there are too many practitioners that are all too willing to give credence to the unreasonable or out of control, as opposed to trying to put a case on the right track towards resolution.  That is unfortunate.

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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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There has been a lot of talk about the lack of preparedness for last week’s snow storm that left many people stranded in traffic for hours trying to get home.  While many have argued, perhaps rightly, that the storm turned out being much worse the forecast, at the end of the day, as with many other things in life, people focus on the end results.  In fact, my bet is that most of the people who were complaining when schools called an early dismissal the night before, when the forecast was for much less snow than actually fell, were the same people complaining about the ultimate outcome.

Divorce is very much the same way.  While you may not know exactly when the process may start, few people are really, deep down, surprised that it is actually happening because the warning signs are there, whether it is adultery, lack of intimacy, constant fighting, lack of communication, bad communication, lack of agreement regarding parenting, etc.  This reminds me of a story that a client told me many many years ago.  He and his wife were in marriage counseling for years and he ultimately decided to tell his wife that he intended on pursuing a divorce during a counseling session.  The wife responded with epic histrionics suggesting that she was shocked.  The therapist ultimately told her that she could express any number of emotions but surprise wasn’t one of them.

The point again is that divorce is seldom a surprise.  Moreover, you don’t really know how bad the storm is going to be until it happens.  Most people want an “amicable” divorce but seldom agree on what that actually means at the beginning.  Very often, emotion takes over and derails what should be an “easy”, legally speaking, divorce.  On the other hand, some matters that appear like they can be very complex resolve easily because one or both of the parties are sufficiently motivated to get a deal done.

And because the ultimate divorce is seldom a surprise, if you think that divorce is possibility, you can do two things.  One is to put your head in the sand and then be overwhelmed by the storm when it comes.  The other is to prepare for the storm, just in case.  What are the things you can do to prepare?  Here are some things you can do:

  1. Familiarize yourself with your finances – income, assets, liabilities, budget.  Perhaps prepare a balance sheet of your assets and liabilities and start putting together a budget of your historical spending.
  2. Familiarize yourself with your spouse’s income?  How are they paid?  Do they receive a base and a bonus? Is the bonus guaranteed?  Is there a target bonus? Is there deferred compensation – stock options, restricted stock, RSUs, REUs, and/or any of the other of the alphabet soup of other earned income?  Finding out if there what is vested or not, if there is a vesting scheduling, when are these things usually paid, where have they been historically deposited, do they automatically convert to cash or stock when they vest, etc.
  3. Familiarize yourself with your spouse’s benefits and perquisites, including health insurance, other insurances, retirement plans, and the like?  Is there are vehicle that the employer or your spouse’s business (if they are a business owner)?  And if they are a business owner, is there a business credit card?  What things does the business pay for?  If there is a business, is their cash?
  4. While you are doing all of the above, start assembling historical financial documents.  Five years of tax, income, bank, brokerage, retirement and credit card information is a good start but if there are other seemingly important documents in the house, on computer hard drives or online, secure copies of those, as well.  And after you go about doing that, don’t leave the documents lying around the house or in the trunk of your car where your spouse can take them.  Make copies and secure them off site.
  5. If you have assets that are premarital, received via a third party gift and/or inherited, it is your burden to prove to a court that those assets are exempt.  If you can prove exemption, then they are not divided in equitable distribution typically.  It should be of no surprise that when a divorce occurs, these documents disappear, as well.  Accordingly, if divorce is a possibility, secure these documents as well.
  6. If there are valuable items that may “disappear”, you may want to secure them – eg. putting jewelry in a safe deposit box.  You would not believe how many times a wife’s engagement ring (which is legally exempt in most cases), disappears on the occurrence of a divorce.
  7. If custody and/or parenting time could be an issue, familiarize yourself with your children’s teachers, doctors, friends, etc. both at present and in the past.  Think about who may be witnesses regarding your involvement with the children.
  8. Research potential therapists for both yourself and your children.  Even if they are not needed at the moment, once the storm comes, they may be a resource that you want to avail yourself of.
  9. Identify a solid support system.  I am not suggesting that you tell the world that your marriage may be coming to an end.  Rather, identify for yourself the people that you believe you can rely on when the storm comes.
  10. Have a consultation with a divorce lawyer – even if you are not ready to proceed.  For one, you will get some education about your rights and responsibilities.  Fear of the unknown often paralyzes people.  Moreover, based upon your specific facts and circumstances, the above list to help you get prepared in case of the storm may expand.

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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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It’s the Thursday before Thanksgiving and you’re getting divorced… tough as it may sound,  it’s important to put down your pad and pen, eat some Turkey (tofurkey works, too) and remember what you have to be thankful for.  Here’s a Top 5 for a little chuckle:

  1. You will get divorced…  For some that day may be soon and for others not soon at all, but whenever the day is, it will come!
  2. For those with children (four-legged count also), regardless of how you feel about your soon to be ex, your relationship gave you the wonderful kids that you may be doing this for!  For those without children, be thankful that once you are divorced, your connection to your ex will be minimal, if any!
  3. New traditions (and some may add no more Thanksgivings with your in-laws)!
  4. Prenuptial Agreements (whether this time around or next)…
  5. … And the capable counsel you have guiding you along this journey (who can even make you laugh once in a while)!

In all seriousness, the holidays are a good time to reflect and remember that you can take a step away, take a deep breath and just enjoy your time without focusing on your divorce… even the Courts are closed next week!

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.