As a family lawyer who deals with custody issues, I often remember Keanu Reeve’s line in the 1989 movie, Parenthood:  “You know, Mrs. Buckman, you need a license to buy a dog, or drive a car. H(eck), you need a license to catch a fish! But they’ll let any  *&%$ (expletive) be a [parent].”  There is no instruction manual, and a divorce often brings out some of the challenges of being a parent.

Attorneys are often asked by clients what they should say to their children and how should they let their children know the divorce ( or spit between unmarried parents) is coming. The common answer is to advise the client to let the children know both parents love them; the divorce is not about them in the least; don’t worry, and everything will be fine. This conversation often comes at a time where the questioned parent doesn’t have answers as to where the children will live, what school they will go to, and what the actual custody schedule will be.

As it turns out, this might not be the best advice after all. Time.com has recently published an article  in which the writer advises that children who are anxious should not be told everything will be O.K. Rather, it is important for parents to validate children’s worries.

Often times, a child psychologist can help parents relayed the news of an impending divorce to their children. As distasteful as it may seem to sit in an office with your soon-to-be ex to come up with a plan to tell the children, it could make all the difference in the world to your children

What to do when you don’t have all the answers? First, find out exactly what it is that the child is worried about. Depending on the age, this could be at its simple as wondering whether a favorite stuffed animal will be able to come to a new home. Determining precisely what any particular child is anxious about avoids compounding the problem by giving more information than might be necessary at any given time, thereby causing more stress. Give what answers you can, without scaring the child. For example, when a child asks which parent he or she will live with in the middle of a custody evaluation, the honest. Tell the child that mom and dad haven’t made that decision yet and the judge and other professionals are going to help make that decision. Don’t ask a young child for his or her preference. This places the child in the unreasonable position of having to choose one parent over the other. Regardless of how you feel about your soon-to-be ex, most children love both parents unconditionally.

Don’t be afraid to say, “I don’t know.” But say it in a reassuring way. For a parent who does not anticipate being able to stay in the same school district, assuring that the child will be part of the process of finding a new residence and looking at new schools can make the child feel part of the decision-making and alleviate some of the fears and anxiety. It certainly may not be a perfect answer, but is better than the child being kept completely in the dark until the day the divorce is over.

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

You have one household barely scraping by. You have two incomes, but the bills still pile up. From month to month, you pinch pennies, cut coupons and budget.
Now take that household, double the expenses, and cut the income in half.

Good luck.

This situation is something that millions of people face each day. One spouse leaves the residence, seeks a divorce and *surprise* you also need to help support his/her living expenses during the pendency of the matter. But how are you going to do that when your income has just been slashed and your expenses just doubled?

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Judge Jones of Ocean County recently addressed what happens when one spouse requests support of the other during the divorce proceedings, or on a pendente lite basis, under the newly enacted statutory amendments to New Jersey’s alimony statute in the recent case of Malik v. Malik.

Historically, in New Jersey, judges have awarded pendente lite support to preserve the status quo, and maintain the parties in the positions they were in prior to the litigation. This typically involves payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage.

The logic of these awards is clear. As Judge Jones put it in Malik: “…if there is no interim support agreement or order defining the financial rights and obligations of the parties, economic chaos may result…the purpose of a pendente lite support application is to help financially bridge the gap in time between the beginning and end (or other interim point in the divorce litigation), in an orderly fashion…In fact, a pendente lite order is often the only way to provide the means for a supported spouse to survive at the start of an action.”

Here is a general run-down of how pendente lite applications are heard and decided:

• A supported spouse files a pendente lite motion at the start or the early stages of the divorce process, asking the court to make preliminary decisions about interim support. This is typically prior to the close or perhaps even the start of the period of discovery – meaning, that the Court does not yet have complete information as to the parties’ finances.

• The motion is generally heard on the Family Court’s motion calendar.

• In deciding the application, the Court rarely takes direct oral testimony of the parties and instead is authorized to make a determination based upon affidavits of the parties.

• Any pendente lite order is entered without prejudice, meaning that it can be retroactively modified, upward or downward at the trial of trial, in the court’s discretion. The court can also modify the award prior to trial upon a showing of change circumstances.

Prior to the enactment of the new alimony law, N.J.S.A. 2A:34-23, the focus of these applications was typically the marital lifestyle, i.e. the status quo of the marriage, almost to the exclusion of all other factors.

In 2014, however, the legislature enacted amendments to the statue, which now clarify the concept of considering all of the factors in the alimony analysis rather than just marital lifestyle. In fact, 4 separate directives in the statute make that concept more clear:

(1) The amended statute now directs family courts to consider, among other factors, “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living reasonably comparable to the standard of living reasonably comparable to the standard of living in the marriage or civil union to which both parties are entitled.”

(2) The amended statute expressly provides that neither party has “a greater entitlement to that standard of living than the other.”

(3) The amended statute declares that “no factor shall carry more weight than any other factor unless the court finds otherwise.”

(4) The amended statute now states that the nature, amount and length of pendente lite support, if any, paid during the divorce proceeding is to be considered by the court when rendering a final alimony award.

Judge Jones applied these principles to the Malik case where the “blunt economic reality” of separation and divorce rendered it impossible for either party to financially maintain the prior marital lifestyle, or the same standard of living to which they formerly became accustomed during the marriage.

In the Malik case, the husband was a teacher earning $90,000 per year, while the wife was a hairdresser with an imputed income of $20,000 per year. In 2016, each party filed for divorce. They are living separately, and have been sharing joint legal and residential custody of their 2 children.

The wife filed a motion seeking pendente lite alimony which she contended that she needed alimony in order to maintain the marital lifestyle and standard of living, which she had not been able to maintain at the same level as the husband, because he was not paying support. The husband disputed the wife’s need for alimony because she had moved in with her mother.

When Judge Jones examined the evidence in this case, he concluded that the parties’ marital lifestyle budget was $6,100 per month. With the husband remaining in the former marital residence, that of course meant that there was not enough money for both parties to maintain the same lifestyle living apart that they were able to afford while living together. It was simple mathematics, the judge concluded.

Judge Jones went on to state that when neither party can afford to separately maintain the marital lifestyle after separation, both parties should be required to adapt to lifestyles which are financially lower than that which they enjoyed together. A separation constitutes a substantial change in circumstance which requires an appropriate adjustment to the status quo of the marriage. Put another way, no matter what a married couple’s prior married lifestyle and status quo may have been, a separation by married partners into two separate homes is sometimes as substantial a change of economic circumstances as on can possibly imagine.

While the judge certainly took into account both parties’ economic realities, he stated that he would not discount the wife’s need for support based upon her residence with her mother which “appears to be…of financial necessity.” He stated that denying alimony because limited financial circumstances required the wife to move back in with her mother would be “the height of irony.” Even without roof expenses, the wife still had reasonable needs.

Considering all the applicable statutory factors, under the totality of the circumstances, Judge Jones ordered that the husband pay the wife $350 per week in pendente lite alimony, which he noted may be considered “too high” by the husband and “too low” by the wife. But, he noted, it certainly could not be considered inequitable under all the circumstances.
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Eliana Baer, Associate, Fox Rothschild LLPEliana Baer, Associate, Fox Rothschild LLP 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.

As avid readers of this blog know, New Jersey’s recently amended alimony statute has been the inspiration for many blogs posts as cases interpreting same are coming down the pike. Under the amended statute, a party may seek to terminate or modify his or her spousal support obligation based upon an actual or “prospective” retirement. While this was seemingly good news for those seeking to retire, the question many practitioners had was what does “prospective” actually mean?

In the case of Mueller v. Mueller, Judge Lawrence Jones provides some insight as to this very question. The facts in Mueller are simple. The parties were married for twenty (20) years, divorcing in 2006. Under the parties’ Marital Settlement Agreement, the obligor was to pay $300.00 per week in permanent alimony and their agreement did not expressly address retirement or its relationship to the alimony obligation.

The obligor filed a post-judgment motion, under New Jersey’s amended alimony law, seeking a determination that his alimony would end in five (5) years. At the time of the hearing, the obligor was 57 years old. In five years, he would be 62 and entitled to receive his full employment-related pension benefit. The obligor asserted that if his alimony does not end at that time, that he will be unable to retirement at that age.

Judge Jones provides a thorough analysis of the obligor’s claim, specifically discussing the distinction of a pre-September 2014 agreement modification/termination analysis (where the burden is on the obligor to demonstrate why alimony should terminate) vs. a post-September agreement modification/termination analysis (where there is a rebuttable presumption of termination with the burden on the recipient).

He also notes that the amended statute covers the situation where an obligor wishes to retire earlier than “full retirement age” as defined by the receipt of full social security benefits”, which in this particular case would be 66 years and 8 months for the obligor. The rationale behind this provision is to avoid the proverbial “Catch-22” financial situation.

Specifically, if an obligor is considering the possibility of retirement in the near future, he or she logically benefits from knowing in advance, before making the decision to actually leave the workforce, whether the existing alimony obligation will or will not change following retirement. Otherwise, if the obligor first retires and unilaterally terminates his or her primary significant stream of income before knowing whether the alimony obligation will end or change, then the obligor may find him/herself in a precarious financial position following such voluntary departure from employment if the court does not terminate or significantly reduce the existing alimony obligation.

When applying the new law to the facts of the Mueller case, Judge Jones held:
• The spirit of the statute inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance.
o Thus, in this specific case, the request for an order prospectively terminating alimony five (5) years in advance does not lend itself to the Court being able to reasonably analyze and consider all relevant information. The Court warns about how an application too far in advance of prospective retirement could in essence be nothing more than an attempt to summarily change the terms of an alimony settlement agreement.

• An order for prospective termination or modification of alimony based upon reaching a certain retirement age inherently contemplates that the obligor not only reaches retirement age, but actually retires at that point. If the obligor reaches the age, but does not actually retire, the “retirement age” provisions do not trigger until such time as the obligor actually retires or submits an application regarding a prospective retirement in the future.

o Here, the obligor did not provide a specific plan but merely stated a desire to potentially retire in five (5) years, without anything more. While this case does not create a bright-line for when such applications should be brought, Judge Jones notes that a prospective retirement application brought, 12-18 months before prospective retirement, may be more appropriate.

The takeaway from this case is that while the amended alimony statute permits a degree of reasonable prospective adjudication by the court for a prospective rather than actual retirement, an attempt to engage in the necessary statutory analysis several years in advance of such retirement would likely be replete with long-term guesswork. Any such effort would essentially ignore the practical reality that the parties’ economic situations, health and other relevant factors may radically change over such a lengthy period of time, before an actual retirement ever takes place. If you are paying alimony and are within 12-18 months of retirement, you should think about consulting with an experienced professional to discuss your options regarding the termination or modification of your alimony obligation.

Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

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One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
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Eliana Baer, Associate, Fox Rothschild LLP 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.

In the recent decision In the Matter of the Adoption of a Child by J.E.V. and D.G.V., the New Jersey Supreme Court unanimously held that:

[A]n indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel.  A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution.

In this important decision, the Supreme Court built upon the strong foundation of preservation of parental rights under the due process clause which it has maintained time and time again, noting that as a State, our jurisprudence and legislation have historically sought to provide greater protections to the fundamental due process rights of parents than even United States Supreme Court jurisprudence and federal legislation.

In the case at issue, the biological mother of the child in the matter had placed the child with a private adoption agency; however, after counseling, the biological mother decided she no longer wished to terminate her parental rights and began a service plan designed to reunite with her child.  Despite this, the private adoption agency began to make an adoption plan for the child and the potential adoptive parents instituted adoption proceedings over the biological mother’s written objections; she, in fact, objected in writing no less than three times.  After an adoption hearing at which the biological mother was self-represented because she could not afford counsel, her parental rights were terminated and a Judgment of Adoption was entered in favor of J.E.V. and D.G.V.

Interestingly, the Court found that despite the fact that the adoption agency in this case was a private one, “the State’s involvement” in termination of parental rights was still “real” because the termination of parental rights under the Adoption Act is a part of the State’s “overall and coordinated system of child protection and supervision.”  In other words, the State is still involved in the decision to terminate parental rights even in instances where the adoption is private as opposed to when the Division of Child Protection & Permanency institutes termination of parental right and/or adoption proceedings.  Because the State is involved, constitutional due process rights – specifically, the fundamental right to parenthood – are implicated.  And, where this paramount right is at issue, the Court went on, indigent parents opposing termination of parental rights and adoption proceedings cannot be expected to represent themselves adequately at trial given that they are laypeople unfamiliar with the rules of evidence, rules of court, and so on.

The Court went on to find that this right to counsel is triggered immediately upon the biological parent’s objection to the private adoption agency’s decision to proceed toward adoption of the child at issue.  Put another way, when the indigent biological parent objects in writing, that parent must now immediately be appointed counsel so that he or she will be ably and adequately represented at trial.

Looking forward, the Supreme Court strongly encouraged the Administrative Office of the Courts and the Legislature to provide support to indigent parents who oppose the private adoption of their children, much in the way these entities took action when the Court addressed the issue of an indigent parent’s right to counsel when the Division of Child Protection & Permanency (a State agency, formerly DYFS) seeks to terminate parental rights and place the child away from his or her biological parents.  For those cases, the Legislature previously established the Office of Parental Representation, a branch of the Office of the Public Defender which assists indigent biological parents with their cases for free.  The Court recommended that the Director of the Administrative Office of the Courts develop a form designed to help indigent parents respond directly to private agencies’ notification of intent to proceed with adoption.  The Court also called upon the Legislature to create an agency similar to the Office of Parental Representation to assist in private adoption cases.  Time will tell whether these bodies will respond to the Court’s recommendations accordingly.


 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.

I previously blogged on economic abuse as a form of domestic violence in a post titled Financial Abuse: The Invisible Wounds of Domestic Violence. Although occurring in approximately 98% of all domestic violence situations according to National Network to End Domestic Violence, economic abuse is not what most people think about when they hear the term “domestic violence”.

Recently, the unpublished decision of C.G. v. E.G. addressed interference with employment as a harassing and coercive form of domestic violence. In this matter, the defendant intentionally attempted to obstruct and interfere with plaintiff’s new employment by calling her place of work without her consent, bothering her employer as well as her employer’s wife, and embarrassing plaintiff by alleging that she and her employer were having an affair.

Judge Jones defined economic harassment as “including purposeful acts which a defendant perpetrates while intending that such acts either (a) impair or obstruct a plaintiff’s actual or prospective job or job-related duties, or (b) threaten to do so with the purpose of controlling [someone], and/or pressuring or intimidating [someone] into submitting to [their] demands or wishes.” Judge Jones went on to describe this behavior as “fear-inducing to a victim of physical abuse” and that “there are arguable few threats more potentially harassing and coercive than threatening one’s livelihood or employment.”

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So what encompasses purposefully interfering with another’s employment?

(1)        Directly threatening to contact the victim’s place of employment and attempting to get the victim fired, either by making false allegations, or improperly publicizing private, personal and embarrassing information about the victim;

(2)        Actually contacting the place of employment and following through with actions designed to damage the victim’s status, and stability at his/her job; and

(3)        Repeatedly appearing uninvited at the victim’s place of employment and causing a disturbance, or otherwise acting in a manner which is disrespectful of, and/or embarrassing to, the victim, and disruptive to the victim’s job responsibilities and performance, and/or standard business operations.

The abusers underlying behavior, while an obvious form of harassment, is often times done as a way to corner the victim into either interacting with the aggressor or submitting to certain demands. Often times the victim, in order to avoid embarrassment gives in to the aggressor’s behaviors to their detriment.

Such interference with employment may constitute both harassment and coercion. The National Coalition Against Domestic Violence has reported that between 35% and 65% of victims of domestic violence are harassed at work by their abusers.

The New Jersey Supreme Court has recognized the right to be left alone in State v. Hoffmann, 149 N.J. 564, 585-85 (1997). Thus, “a person has a basic right to be left alone by an estranged or former spouse or dating partner at his or her place of employment.”

The Court concluded in C.G. v. E.G. that by phoning “plaintiff’s place of employment against plaintiff’s wishes, with the purpose and tactic of causing her harm as expressed and desired in his text message, and/or otherwise wearing plaintiff down into submission”, defendant “knew or should have known that he was improperly encroaching on Plaintiff’s new employment, while potentially subjecting her to public embarrassment in front of her employer and co-workers” and that these actions constitute harassment.

Additionally, defendant’s actions constitute a new form of domestic violence, coercion. In August 2015, the New Jersey Legislature amended the Domestic Violence Act to include “coercion”.

Coercion is defined as “threats made to unlawfully restrict another’s freedom of action to engage or refrain from engaging in conduct by threatening to:

(1)        Inflict bodily injury on anyone or commit any other offense;

(2)        Accuse anyone of an offense;

(3)        Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4)        Take or withhold action as an official, or cause an official to take or withhold action;

(5)        Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the actor acts;

(6)        Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7)        Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Interference with one’s employment can be considered both harassment and coercion, the latter expanding the prior definition of domestic violence to give victims more alternatives for protection against their abusers.

If you or someone you know is a victim of domestic violence, contact your local law enforcement and/or the confidential and anonymous National Coalition Against Domestic Violence Hotline at 1-800-572-7233.

In law school, lawyers begin to be engrained with the concept of ethical duty of zealous advocacy.  While this concept used to be in the Rules of Professional Conduct, over time, it has been removed.  It has even been largely removed from the ABA’s Model Rules, upon which many State’s rules have been based upon, other than in statements in the Preamble that say, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added).

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Nevertheless, time and again you hear the refrain, in defense of an aggressive if not improper action, position, etc. that “I was only being a zealous advocate.”  However, assuming for arguments sake, that the duty of zealous advocacy exists in either some express or implied way, there certainly seems to be a difference between zealous advocacy and overzealous advocacy.  While the former may be appropriate, the latter is often not.  Moreover, it can be very costly, both financially and emotionally for the parties.

In a recent matter, I have seen an attorney send subpoena after subpoena seeking records, that if obtained, would add nothing to her client’s case.  In some instances, it is more than a fishing expedition or seeking a needle in a haystack, as even if the records were produced, no matter what they said, they would have no probative value in the case.  Moreover, when the subpoenas were not responded to or not responded to the their liking, threats of contempt followed.  Even the seemingly appropriate subpoenas seem needless given that a third party with much greater resources had already done an investigation.  There is one thing about leaving no stone unturned when there is a possibility that the due diligence will be fruitful, and quite another when it is a clear waste of time and money, if not harassment of third parties, from the start.  In that case, the “my client just wants to be sure” defense may not really cut it.

What about the lawyer that lies to further their client’s interests.  I have previously done a blog entitled The Lawyer The Liar which discussed this improper practice.

How about taking and litigating a position that is either contrary to the law, contrary to the facts, or both, and refusing to give it up notwithstanding.  I have seen lawyers push these issues because their client wanted to, because they figured they could make money and/or they figured they would wear the other side down and force them to capitulate to be done.   There are many other examples that I am sure my colleagues can add about examples of overzealous advocacy.

When the offender is called on these tactics, they hide behind the “zealous advocacy” shield. The question to ponder is what is a court to do when zealous advocacy crosses the line to overzealous advocacy.  Whether or not this rises to an ethical issue, will a court make the other party whole or at least put a stop to it?  If not, are we not rewarding pushing the envelope?


 

Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Cersei Lannister may seem like she has it all: unbridled brutality, a mountain of a protector, disfavor in the Realm and a growing list of enemies she’s collected along the way. After all, she’s just destroyed her enemies in one fell swoop as she blew up the Great Sept of Baelor. Although Cersei seemed to have finally served her sweet revenge, she comes to discover that bittersweet aftertaste that just won’t quit.

Cersei soon found out that the fleeting rush she got from all the carnage and destruction (just a few of her favorite things) gave way to a mixed bag of emotions; on the one hand she finally got her seat on the Iron Throne, but on the other hand, she had lost all of her children in the process.

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HBO.com

Apparently, Cersei’s conflicted feelings on the subject of revenge are not unique to her.
A recent study in the upcoming edition of the Journal of Experimental Social Psychology found that the emotional consequences of revenge “are a mixed bag, in that we feel both good and bad when we take revenge on another party.”

Take the good: we love revenge because we punish the offending party. Apparently, the brain areas in charge of making crime and punishment judgments overlap with areas that process reward, which explains the pleasure in punishment/ revenge.

But then there’s the bad: it reminds us of the original act. To put that kind of pain it in context, think about the revenge your stomach exacts the morning after you eat an entire pizza. We’ve all been there.

In fact, just ask anyone who has slashed their cheating ex’s tires. Or take the story recounted by Marylin Stowe, one of England’s top divorce lawyers: Lady Graham Moon has gone down in English family law history for acting like a milkman, except that she was delivering to her neighbors the contents of her estranged husband’s valuable wine cellar.

The act of revenge may feel good in the moment, but soon thereafter, people are reminded of how they felt to have evoked the desire for revenge to begin with.

The stakes become even higher when that cheating ex and you share children together. Indeed, the Journal of Experimental Social Psychology study found that feelings of revenge support endless cycles of retribution that may emerge in the context of conflicts between families. And we all know how that can turn out for parents and children alike.

So take a page out of the book of Cersei, the Queen of Family Dysfunction, and now, the Seven Kingdoms. She should have listed to Mark Twain who said: “Therein lies the defect of revenge: it’s all in the anticipation; the thing itself is a pain, not a pleasure; at least the pain is the biggest end of it.”
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Eliana Baer, Associate, Fox Rothschild LLPEliana 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.

Recently, the New Jersey Supreme Court provided some important clarification with regard to the issue of firearm forfeiture in the wake of an arrest and firearm seizure pursuant to the New Jersey Prevention of Domestic Violence Act (NJPDVA), N.J.S.A. 2C:25-17 to 35.  In In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., the Supreme Court squarely addressed the following important question:  Under what circumstances can a personal firearm and firearms purchaser identification card seized pursuant to the NJPDVA be forfeited pursuant to the firearms forfeiture statute N.J.S.A. 2C:58-3(c)(5)?

The Facts & Evidence

The firearm owner at the center of this case – “F.M.” – was involved in a Domestic Violence proceeding in March 2010, wherein he was named defendant.  As a result of the domestic violence incident, F.M.’s personal firearm and identification card were confiscated by the police.  In addition to the domestic violence proceedings, F.M. was charged with simple assault.  Notably, F.M. himself worked as a police officer and, therefore, had not only a personal weapon but also a service weapon.  At a hearing to determine whether a Final Restraining Order should be entered against F.M. for the protection of his wife, the Court decided against the entry of same and dismissed the case against F.M.

Although one might think that, upon dismissal of an FRO, any weapons seized in connection with the restraining order are automatically returned to the defendant, this is not always the case.  The State may move to forfeit a personal weapon and identification card under N.J.S.A. 2C:58-3(c)(5) even if the domestic violence case under which the weapons were initially seized is dismissed.  This is precisely what the State did in the instant case.  Reserving on the State’s motion, the trial court judge noted that the court would issue a decision on the final disposition of F.M.’s personal and service weapons after he completed a batterer-intervention program and attended individual counseling.  F.M. did so, and subsequently filed a motion seeking the return of his personal weapon, the weapon at issue in this matter.

The State opposed F.M.’s motion, arguing that the return of F.M.’s personal firearm and identification card would not be in the interest of the public health, safety, or welfare.  To make out its case, the State relied upon the testimony of F.M.’s wife, who testified as to F.M’s history of violence against her, as well as the arresting office who responded to the March 2010 incident and confiscated F.M.’s personal firearm and identification card.  Interestingly, the State also relied upon the testimony of two licensed psychologists who had previously performed Fitness for Duty (FFD) evaluations on F.M., and had interviewed F.M.’s wife in connection with same.  Although their evaluations were directly applicable to the issue of F.M.’s service weapons, their testimony was permitted to address the issue of forfeiture of his personal weapon as well.  One of the psychologists had concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger [] to himself or others.”  The other psychologist concluded that, although he couldn’t be classified as having a personality disorder, F.M. exhibited elements of various personality disorders that negatively impacted his ability to effectively serve as a police officer; he concluded that F.M. suffered from “a nearly paranoid sense that everyone was out to get him, poor impulse control, poor anger control, and poor judgment.”  He also stated that he believed the public would be endangered if F.M. continued to serve as an armed police officer and that F.M was not fit for duty.

The Path to the N.J. Supreme Court

Largely because there were no findings of clinical mental illness or personality disorder – but rather only elements of same, or what the trial court judge called “subclinical personality styles and tendencies” – the trial judge ordered the return of the personal weapon and identification card.  Interestingly, the Court rejected the psychologists’ conclusions as to the credibility of F.M.’s wife, because the judge him or herself had had more “exposure” to the altercations between F.M. and his wife as the Family Part Judge handling their domestic violence proceedings. The Family Part judge also seems to have concluded that F.M.’s wife had played a part in instigating the dispute that led to the seizure of the weapon, and that there was no prior instance during which F.M. had actually used a gun to harm anyone.  The Appellate Division largely agreed with the Family Part judge’s analysis and findings, noting that deference is accorded to Family Part judges given their intimate involvement with the facts of family part cases.  The State then appealed to the Supreme Court, arguing that the Family Part judge had misapplied the law.

The N.J. Supreme Court Decision

The N.J. Supreme Court agreed with the State as to its contention that the Family Part judge had misapplied the law and, in according the Family Part deference, the Appellate Division had erred.  In making its decision, the Court looked to the applicable statute which describes who may obtain a personal firearm and identification card, N.J.S.A. 2C:58-3(c), which states:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

The statute goes on to list 10 “disqualifiers” for purchase of a personal weapon and issuance of a firearms purchaser identification card, including:

(1)  To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense; [. . .](5) To any person where the issuance would not be in the interest of the public health, safety, or welfare; [. . .].

Relying on prior decisions, the Court noted that, in order to forfeit a weapon under subpart five (5) of the statute, the State only had to prove by a preponderance of the evidence (a lower evidentiary standard equating to “more likely than not”) that an individual’s possession of a firearm would be against the public health, safety, or welfare.  The purpose of the low evidentiary standard is, perhaps obviously, “to prevent firearms from coming into the hands of persons likely to pose a danger to the public.”

Contrary to the holding in the lower courts, the Supreme Court found that the  testimony of F.M.’s wife, the responding officer, and the psychologists – despite their lack of finding a clinical mental illness or personality disorder – suggested that F.M.’s possession of a firearm would indeed more likely than not pose a danger to the public.

Takeaways for the Family Law Practitioner

Those of us who practice family law are well versed in the precedential law that says that the Appellate Division and Supreme Court accord great deference to Family Part Judges.  In this case, however, the Supreme Court reminded us that, although such deference is given to Family Part judges as to the facts of a case, a judge’s legal determinations are of course not immune to review by the higher courts.  A Family Part judge may have a greater “feel” for the case given its familiarity with the parties and issues, but – and perhaps this is stating the obvious – that doesn’t mean their application of the law to the facts must be given deference on appeal.  In this case, the Family Part overlooked the plain language of the statute and appropriate evidentiary standard, and instead made its own justifications for returning the personal weapon and identification card to the defendant.

For those involved in domestic violence matters, this case also serves as a reminder that weapons forfeiture under that statute is black-and-white when an FRO is entered.  If a final restraining order is entered, under subpart (1) of N.J.S.A. 2C:58-3(c), the defendant’s firearm and identification card will be forfeited, something that must be taken into consideration if you are representing a defendant who is a licensed firearm owner.

And yet, if the domestic violence case is dismissed, the issue becomes more gray.  Even if the domestic violence matter that led to the initial confiscation of a firearm and ID card is dismissed against a firearm-owning defendant, the case discussed here makes clear that weapons can still be forfeited if there is credible testimony showing by a preponderance of the evidence that the defendant may be a danger to the public.  Notably, the outcome here also shows that, even if a plaintiff’s testimony in his or her domestic violence matter is insufficient to sustain the entry of a restraining order under the NJPDVA, his or her testimony may be used to prove that the defendant’s firearm and identification card should be forfeited on other grounds.

Whether you represent the party pursuing a restraining order or defending against one, this is important knowledge to have when dealing with a firearm-owning client or adverse party in a domestic violence matter.


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.

Perhaps Kurt Cobain knew when writing the song “All Apologies” that one day his daughter would be embroiled in a nasty divorce battle.  While the lyrics, “Married, Buried, Married, Buried”, may not sound uplifting, they are undeniably classic Nirvana.  Fans of the band would largely agree that the most well known live performance of the song was the acoustic version played during the band’s “Unplugged in New York”, which took place shortly before Cobain’s death.  Now it is the guitar used by Kurt during that performance which lies at the center of Frances Bean Cobain’s divorce from her husband.

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Specifically, Frances’s husband is in possession of the guitar – thought to be worth several million dollars – and refuses to return it to her while alleging that she gave it to him as a wedding present.  Not surprisingly, Frances denies ever giving it to him at the start of their short-term marriage, and is taking the position that he has no right to any money from her fortune (Kurt’s estate is valued at approximately $450 million).

With that said, and straight from Seattle to the swamps of New Jersey, how would a court here potentially address the issue?

I Think I’m Dumb, or Maybe Just Happy:  Well, for starters, is there a prenup protecting Frances’s rights and interests in Kurt’s estate and, as part of the estate, the subject guitar?  I don’t know the answer, but even if Frances was blinded by her love for her now soon to be ex-husband, she would hopefully be smart enough to have had some sort of agreement drafted and signed protecting her from the claim now being made (unlike Paul McCartney in his divorce from Heather Mills, for example).  Such agreements often have language addressing so-called separate property and whether separate property is exempt from equitable distribution.  Language regarding interspousal gifts is also common and can be crafted in a way to ensure that even if she did gift the guitar to him during the marriage, it could still remain separate property exempt from distribution.

And For This Gift, I Feel Blessed:  At the heart-shaped box of this matter is whether the guitar was an interspousal gift from Frances to husband during the marriage.  This is essentially what husband is claiming.  In New Jersey, an interspousal gift is subject to equitable distribution.  Husband can take the position that even if the guitar was originally a non-marital asset exempt from equitable distribution (for instance, as an inheritance or gift to Frances, or by agreement), it lost that exempt status and became marital property subject to distribution once she gifted it to him.  If proven, Frances loses the right to claim that the guitar is exempt from equitable distribution at the time of the divorce.  With a guitar worth several million dollars, husband may look at his share of the guitar as the proverbial meal ticket in a short-term marriage where his rights are likely otherwise limited.

Hey!  Wait!  I’ve Got a New Complaint:  To rebut husband’s claim and supporting evidence/testimony that Frances gifted him the guitar, Frances would have to establish that there never was any gift.  In other words, there was no intent by Frances to gift him the guitar – a fact that perhaps she could establish by testifying about how she told husband at the time, and/or at other times during the marriage, that it was her/her family’s guitar, rather than husband’s guitar.  Maybe husband simply took it from the home and is now fabricating the entire story.  Credibility and the surrounding factual circumstances will play a large part in the final result.  Also, even if the guitar was ultimately deemed to be an interspousal gift, Frances may be aided in the actual allocation of the asset by New Jersey’s equitable distribution factors, especially that regarding who brought the subject property to the marriage.  Keeping the guitar in the Cobain family would seemingly be an important consideration for a family court judge, and may sway any determination regarding whether Frances could ever have intended it to be a gift.

It will be interesting to see how this matter unfolds and ultimately concludes.  Whether the litigant is Frances or anyone else similarly in her shoes, learning the law regarding gifts and equitable distribution may leave the litigant forever in debt to such priceless advice.

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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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