More and more, when discussing the payment of college education expenses with clients for their children, I am being asked, “What about graduate school?”  The guiding principal behind that question, I suppose, is that, in New Jersey, it is well-settled that absent extenuating circumstances, both parties to a divorce have an obligation to financially provide for their children’s college educations.  By that logic, if a child seeks an advanced degree, don’t both parties have an obligation to financially contribute to those educational costs as well?

The question of whether a graduate degree is the new undergraduate degree is a debatable one, sure.  But in a recent unpublished (not precedential) decision, J.C. v. A.C., the New Jersey Superior Court determined that even though divorced parents have an obligation to contribute to their children’s pursuit of a college degree in ordinary circumstances, this doesn’t mean that there is a continuing obligation to contribute to the child’s pursuit of a graduate degree.

back to school

The pertinent question here is whether the child is emancipated, i.e., whether the child has the ability to support him or herself.  New Jersey generally deems children to be unemancipated, even if they are over the age of 18, if they are attending college full time.  This is because our courts have established that a child attending college is generally not capable of supporting him or herself yet.  But, as Judge Jones discusses in J.C., the same cannot necessarily be said of a child who has already obtained a college education and has a college degree.  The Court cannot simply look at graduate school as an extension of undergraduate education, because there are clear differences between a college student with only a high school degree, and a graduate student with a college degree:

First, as previously noted, a graduate student has usually and most critically already obtained a bachelor’s degree, evidencing an enhanced ability to start taking independent responsibility for his or her own life.

Second, a graduate student who already has a bachelor’s degree – as compared to an undergraduate student with only a high school diploma – may logically and inherently more marketable [sic] in certain instances, an therefore reasonably expected to utilize the degree and apply for jobs where he or she can earn an independent living, even if such jobs may pay less than certain positions which require a master’s degree or other advanced degrees that the student can obtain on his or her own at a later date. [. . .].

Third, the distinction between an undergraduate student and a graduate student has been implicitly recognized by the Federal government itself.  When an undergraduate student applies for financial aid through FAFSA, the FAFSA application form generally requires applicants to disclose parental income as part of the information necessary to determine eligibility and the amount of financial aid the applicant may receive.  Graduate and professional degree students are generally considered independent students and are not required to supply information regarding parental income on the FAFSA application. [. . .].

Fourth, absent highly unusual circumstances, a graudate student is, from a chronological standpoint, generally older than the undergraduate student, and therefore naturally expected to be more mature and independent in a manner consistent with his or her years and life experience.  With such years are naturally expected to come the ability to be self sufficient, outside the sphere of parental influence. [. . .].

Fifth, from a standpoint of sensibility, one may legitimately question just how far the concept of extending emancipation and child dependency beyond college graduation actually goes. [. . .]. Does a parent have to financially maintain a “child” who is 25 or 30 years old, just because the child chooses to seek further advanced degrees, and the parent happened to have had an unsuccessful marriage and divorced the child’s other parent many years earlier?  Does such a result make practical sense?

The question then, says Judge Jones, must be:  is this college graduate emancipated, or not?  Judge Jones’ analysis above suggests that the Court should, in most circumstances, consider a college grad to be capable of supporting him or herself – even if he or she might want to pursue a higher education degree that would allow him or her to support him/herself, perhaps, on a higher salary – and therefore be emancipated.  The burden of proof, then, should lie with the applicant seeking a parent’s contribution to graduate educational expenses to show that it is “appropriate, necessary, and equitable under the circumstances” to require continued support by way of an order requiring a parent to help pay for grad school.  The pertinent factors in that analysis would be the oft-cited Newburgh v. Arrigo factors:

  1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
  2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education;
  3. The amount of the contribution sought by the child for the cost of higher education;
  4. The ability of the parent to pay that cost;
  5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
  6. The financial resources of both parents;
  7. The commitment to and aptitude of the child for the requested education;
  8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
  9. The ability of the child to earn income during the school year or on vacation;
  10. The availability of financial aid in the form of college grants and loans;
  11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

These, combined with other equitable factors for consideration – most obviously, the inherent differences between a high school student seeking contribution to undergraduate expenses and a college grad seeking contribution to graduate school expenses – have to be considered when determining whether it is fair for a parent to have to contribute to graduate education expenses.

But wait…what about the new statute?

The J.C. v. A.C. case recognizes that, effective February 1, 2017, there will be major changes in the law of emancipation and termination of a parent’s obligation to pay child and other financial support under N.J.S.A. 2A:17-56.67.  Under that statute – which will apply retroactively as well as prospectively – a parent’s obligation to pay child support will terminate by operation of law when a child reaches the age of 19, unless a court orders an extension of payment which shall not extend beyond the child’s 23rd birthday.  If a child is enrolled full time in college after he or she reaches the age of 19, then child support will not be terminated until that child reaches age 23, by which time the average college student has indeed graduated.

That’s a long-winded way of saying:  If your kid is in college, child support and a parent’s obligation to pay for college will continue until your kid turns 23.  Then, there can be no more child support.

BUT – and this is a big “but” – the amended statute provides that even though “child support” – i.e. payments from one parent to another for the support of the child – terminates, a child over the age of 23 will be able to seek a court order requiring “other forms of financial maintenance” from a parent.  In other words, a child over the age of 23 can still ask the court to require a parent to pay his/her expenses, it just won’t be called “child support.”

I recently moderated a Continuing Legal Education Panel where the panelists and I discussed this impending new statute, and this very issue was raised:  Under the new statute, could a 23 year old (or older!) “child” apply to the Court for another “form of financial maintenance” from a parent in the form of contribution to graduate education expenses?  And could that child be successful?

Judge Jones’ opinion certainly provides guidance on that question and suggests that not every claim by a child seeking a parent’s contribution to graduate school expenses should be granted under the new statute; the test will be whether the child can meet his or her burden of proof to show that an order requiring a parent to contribute to grad school expenses is “appropriate, necessary, and equitable under the circumstances” based upon the Newburgh factors and any other equitable considerations, including most importantly the general distinctions that can be made between a high school student seeking contribution to undergraduate expenses and a college graduate seeking contribution from a parent for grad school expenses.


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.

On December 5, 2016, an extremely interesting reported (precedential) opinion was released by the Appellate Division in the matter of J.S. v. D.S.  The opinion was remarkable for two reasons, one procedural and one substantive.  On the procedural side, what was interesting was that the Appellate Division proceeded to decide the case even though the matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

44694685 - domestic violence abuse or aggression within marriage against partner wife or children

The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.

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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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Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues.  The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA.  The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time.  Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate.  Unlike a custody evaluation, there is no psychological testing or psychological evaluations.  The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues.  Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations.  At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

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However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so.  In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

            While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process.  First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty.  See N.J.R.E. 702, 401 and 402.  See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey).  See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).  As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children.  To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408?  Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA?  See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006).  If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters?  See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

 

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the  case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility.  However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door.  Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

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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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Johnny Depp a.k.a. Capt. Jack Sparrow is in the news again, this time for his failure to pay Amber Heard a $7 million divorce settlement. Heard had promised that any settlement that she received from Depp would be donated to charity. She has chosen two charities, the American Civil Liberties Union and the Children’s Hospital of Los Angeles to be the beneficiaries of her largess. Depp hasn’t made the payout yet because he wants to pay directly to the charities rather than to Heard. At issue is the substantial tax benefits that Depp would reap by making the payments directly to charities rather than Heard.

Johnny Depp in Capt. Jack Sparrow costume
By NJM2010 (Own work) [CC0], via Wikimedia Commons
Tax consequences of divorce disbursements is an important consideration when negotiating a settlement. Often times the client will simply lump all assets together and come up with a value of the marital estate not taking into consideration possible tax issues for each individual asset. For instance, the average couple may have a house with $250,000 of equity, a 401(k) with $500,000, and various bank accounts equal to $250,000. The easy math would suggest that one spouse take the 401(k) and the other take the accounts and the house, right? Not so fast. The spouse who would walk away with the house and the bank accounts could liquidate everything and have $500,000 to spend now. The spouse with the 401(k), however, has significantly less available liquidity. Assume, for example, that the spouse that takes the 401(k) has an overall 30% tax bracket for state and federal taxes. To liquidate the 401(k), that spouse would have to pay not only 30% in taxes, but absent extraordinary circumstances, a 10% penalty to liquidate the retirement early. All too quickly that $500,000 becomes $315,000.

This simplistic example demonstrates the necessity of understanding tax consequences to all of the assets in a divorce. This includes stocks and bonds that may have been purchased at a low price that have gone up substantially in value, retirement accounts, real estate investments which in and of themselves may have tax consequences such as available deductions, and carry forward losses on prior tax returns. In the rush to settle the case, litigants sometimes forget the importance of the careful review of their prior tax returns and asset portfolio. A quick call to your accountant may assist your attorney in protecting your future significantly.

 

MillnerJennifer_twitterJennifer 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.

Ah, that unforgettable line uttered by Veruca Salt in Willy Wonka and the Chocolate Factory.  As a matrimonial attorney, this is what it feels like we deal with quite often.  But I am not referring to people just being demanding, I am talking about people making unreasonable demands, with no apparent justification in law or in fact.  In fact, I have had enough of “my client just wants”, “that’s not enough” and “I know that a court would never do that but my client insists” over the last several months to last me a career.

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Some examples have been, in no particular order, demands for child support that exceed what the Guidelines would require by 7 to 10 times; demands for combined alimony and child support representing 60% or more of pre-tax income; demands for a buy out on the house for higher than the agreed upon value less the agreed upon mortgage; demands to share in exempt inheritances, trusts or family gifts that were never commingled; demands that one party get most of the marital assets because they were held in her name, though not exempt; demands for more than half of the assets, or 100% of the house free and clear of the substantial mortgage debt “because you caused the divorce.”

It is bad enough when an a litigant, who is uneducated about the law makes these demands.  That is to be expected because of ignorance of the law or raw emotions clouding judgment or both.  It is quite another thing when the client’s lawyer makes the demand, knowing that there is no rational or legal basis for the request.  As a younger lawyer, I remember incredulously asking an adversary, “Is your client really seeking 80% of the assets and 90% of my client’s net income?” to which the answer was yes.  Inevitably, when they are called on it, they sell their client out, saying how unreasonable they are, but they are just doing what they have been instructed to do.  Is that response good enough?  First, you wonder if they ever actually educated their client on the law (or whether they know it themselves).  If they have educated the client, is it proper to make a demand that is unreasonable, if not bad faith?

On the other side of the equation there may be the litigant that is willing to negotiate a reasonable resolution within the expected settlement parameters based upon the facts of the case (though often, water finds is level and where there is one unreasonable party, their spouse may be their mirror image in that regard.)  But what is the reasonable litigant to do?  They are often left with having to make the  “Hobson’s choice” of capitulating to the unreasonable party, or incurring the cost of litigation.  Worse yet, I have seen mediators, early settlement panelists, and even judges, try to pressure the reasonable party to settle because the other party wont budge, or split differences between the reasonable proposal and the unreasonable demand resulting in a slightly less unreasonable proposed resolution.  That said, I have seen these same judges, mediators or panelists use the threat that the unreasonable party may be required to pay the other party’s counsel fees as an effective deterrent.  Unfortunately, usually by that time, a lot of money has already been spent for something that should probably have been nipped in the bud from day one.

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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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Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

38681136 - child with graduation robe

In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…


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.

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

  6. It really, really hurts when you don’t show up for something we have scheduled.

  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

  9. I am not staying with you to provide information about what the other parent is doing.

  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

  14. If there is bad news, please don’t ask me to be the courier.

  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

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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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“Justice delayed is justice denied.”  I am sure that many have heard this old legal maxim.  Though the original source is unclear, what is not unclear is that it essentially means that when a legal remedy is available, but not provided in a timely fashion, it is like having no remedy, at all.

38413886 - words justice delayed is justice denied

When I speak to other attorneys in court, at mediations or at bar events, one of the things discussed most is the delay in getting matters decided.  While the discussion is sometimes about a trial decision, most of the time we are talking about routine motion practice both during active divorce cases and during post judgment cases.  For a trial, especially a long one, it is more understandable.  Very often the attorneys want to review the transcripts and otherwise have a month or more from the close of the evidence to submit written summations.  Moreover, in addition to their jam packed daily dockets, the judge needs time to review the evidence and prepare a thoughtful and comprehensive (hopefully) written or oral decision.  That said, I have been in involved in cases where it has taken more than a year from the end of a trial to get a decision.  I have heard, anecdotally, of people getting trial decisions more than 2 years after the close of the evidence.  In addition, several years ago, we heard that one judge was not permitted to start any more trials due to the number of completed trials that were not decided.  A moment ago I said that “hopefully” you then get a comprehensive decision, but very often, it seems that decisions are either incomplete, or certain findings of fact simply wrong, most likely due to the passage of time between when the testimony heard and evidence presented, and the completion of the opinion.  During this time, peoples lives remain on hold and temporary support orders which might be too high or too low remain in effect.  In the off chance that they are adjusted by the trial decision, that could create a huge arrears or huge credit to a party.  If they are not corrected, then one party had to live with a potentially unfair result for a very long time.

While there are delays in receiving trial decisions, while more understandable, this impacts fewer litigants than delays in receiving motion decisions because a very small percentage of cases are actually tried to conclusion.  On the other hand, motions are heard every Friday or every other Friday depending on the county and the judge.  Now, the rule regarding motions in family part cases, specifically R. 5:4-4(f), clearly states:

(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

Unfortunately, all too often, this Court Rule is honored in the breach and the decision on the motion is delayed days, weeks, months or even years.  Yes, I said YEARS.  I have one pre-judgment motion that was filed nearly 2 years ago, in large part regarding the payment of college for the first child.  A second child is now in college and there is still no decision.  The matter, which was supposed to be tried more than a year ago, has basically been shut down for 22 months and counting.  I have another motion that is pending for more than 15 months.  We have others which have been pending for several months, including ones that are seeking either financial restraints or restraints related to children which are being flaunted while no decision is made.  I hear similar stories from many or our colleagues and adversaries.

Note too that these delays are on top of the delays in getting the motion heard in the first place.  It is not unusual for a motion to be delayed based upon an adversaries request for an adjournment.  Since first adjournment requests are almost universally granted, even when there is time of the essence on certain issues, it is most often fruitless to oppose them – though sometimes you have to.  Very often, motions are administratively adjourned because the judge’s motion calendar for the selected day is full or the judge is otherwise unavailable.  When that adjournment is added to the first adjournment request, which at that point possibly shouldn’t be granted but is granted anyway, then the motion is heard about one month after the original return date and about 2 months after it was filed.  Some judges, however, despite demanding that all papers be filed as if the motion is going to be heard, do not schedule oral argument on the motion for weeks or months.  That is then compounded when that same judge doesn’t decide the motion on the day of argument as required by the Court Rules.

What is the outcome of this delay?  For a party who is cut off financially by their spouse, they could go weeks, if not months, with little to no money at all.  When it is an enforcement motion, the violator is often empowered by the lack of a decision and doubles down in his or her violation of court Orders because they feel impervious to sanctions.  When restraints are sought and adjudication is delayed, the risk of a new status quo being improperly created or parties or children harmed because you cannot “put the genie back into the bottle”, or the money is gone, or worse yet, a child is physically or emotionally hurt, are real results of justice delayed.

The other outcome is that the harmed litigant loses faith in the judicial system. They have not been treated fairly by the delay and feel that they will never receive a fair result from the judge that they believe does not care about their case – or worse yet, they feel that the judge is harming their case if not their children and/or their life. Sometimes this results in them losing faith in their lawyers too.  Sometimes it makes cases harder to settle because decisions that could have nipped issues in the bud or shaped a fair resolution of the case do not happen or come too late and then the fight is how to fix the mess created by the delay or counsel fees created by it.  And who do you complain to?  Do you risk a negative result on the pending motion or future appearances before that judge by writing to the Presiding or Assignment Judge?

The only ones who seem to benefit from this delay are mediators or arbitrators, who the parties now have to pay because they cannot get timely relief from the court.  There is something very unfair about that, though this happens every day.  Clients suffer and the system as a whole suffers as a result.

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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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The standard for entry of a Final Restraining Order (FRO) under the NJ Prevention of Domestic Violence has been long established by the Courts (and discussed many times on this blog); under the seminal case Silver v. Silver, in order to obtain an FRO, the plaintiff must have a qualifying relationship with the defendant, and also has the burden to establish that:

  1. The defendant committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and
  2. There is a need for the protection of an FRO going forward.

In a recent published (precedential) decision, A.M.C. v. P.B., the Appellate Division addressed the second prong of that test and the misapplication of the facts to the law that led to the trial court denying the plaintiff’s request for a Final Restraining Order.  In this case, the plaintiff filed a temporary restraining order alleging that the defendant had committed the predicate acts of harassment, assault, and terroristic threats.  At trial, the Court made a factual finding that the predicate act of assault had occurred.  More specifically, the Court found that the act of assault that formed the predicate act of violence for the complaint had occurred and that the defendant had assaulted the plaintiff in an attempt to prevent her from fleeing the marital home.  Further, the trial Court found that a prior act of assault had occurred three weeks earlier.

Despite making those factual findings, the trial court denied the Final Restraining Order because it found that – in spite of two acts of assault that had occurred within a three week period – the plaintiff did not need the protection of an FRO to prevent the defendant from committing further acts of domestic violence against her.  The trial court made this finding based chiefly on 1) the fact that the defendant had not contacted the plaintiff in the 10 days between her having filed the TRO and the Final Restraining Order hearing; 2) the parties’ marriage and, indeed, relationship, was short-term; and 3) the parties did not have children together, which was seen by the court as a mitigating factor because, the judge reasoned, there was less of a likelihood of interaction between the parties since they would not have to go on to co-parent together.

The plaintiff appealed.  On appeal, the Appellate Division squarely addressed the question, “Despite finding that a defendant committed one of the predicate acts listed in N.J.S.A.2C:25-19a, when may a court properly refuse to issue restraints?”  Hearkening back to the seminal Silver case itself, the Appellate Division answered that question by holding that when the predicate acts involves a violent offense – such as assault – and the Court has found that it occurred, then “the decision to issue an FRO ‘is most often perfunctory and self-evident.'” (quoting Silver at p. 127).  The Appellate Division reversed; it found that, in determining that the plaintiff did not need the protection of an FRO going forward, the trial court had “no rational basis” for relying on the length of the marriage, the fact that the parties have no children, and the fact that the defendant had not contacted the plaintiff between when she fled the home and the day of the FRO hearing.  And this makes sense:  if it has been found that a given defendant has a propensity for physical violence against the plaintiff, this should be more persuasive than any of the facts that the trial court relied upon when it made its decision.  Just because a relationship is short-term and there are no children, or the defendant didn’t contact the plaintiff during the ten day period between issuance of a TRO and the FRO hearing, doesn’t lessen the likelihood that the defendant will target the plaintiff with physical violence again.

The takeaway?  The Appellate Division has held that, where the court finds that a predicate act of physical violence (for example, assault or sexual assault) has occurred, the fact that the act was violent in nature should be weighted heavily by the trial judge when assessing whether there is a need for the protection of the FRO going forward, and that an FRO should generally be issued in these instances.


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.

Every family uses its money in different ways. Some families spend every cent they have on everything imaginable, others save every last possible cent for the proverbial “rainy day”, and many families fall somewhere in between. Once a marriage comes to an end, however, will both spouses be able to continue spending or saving in the same way they did during the marriage as part of the lifestyle lived?

New Jersey case law has long held that a trial court may consider a savings component as part of an alimony award to protect a dependent spouse from the potential future loss of income by allowing her to accumulate a post-Judgment safety net. One question that has never been answered until now, however, is whether a history of regular savings during the marriage as part of the marital lifestyle should be considered in setting an initial alimony award even when there is no need to protect the dependent spouse.

According to the Appellate Division in the newly published, precedential decision of Lombardi v. Lombardi, the answer is a resounding yes.

Kid counting money
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FACTS TO KNOW:

During the parties’ marriage, savings was the largest component of the parties’ lifestyle, but the trial judge rejected inclusion of a savings component when awarding alimony because the payee-wife did not need such funds to protect herself from a potential future loss of alimony. The parties jointly decided to live a comfortable lifestyle during which they saved approximately $70,000 per month, and budgeted most of the earned collective income so that the parties would have no worries about finances when paying for college and entering into retirement. In fact, the parties budgeted so efficiently that the payor-husband could retire at age 45 with an accumulation of $5 million in assets that could generate sufficient income to help fulfill the family’s lifestyle.

THE TRIAL COURT’S DECISION:

At trial, the wife indicated that she needed approximately $16,000 per month for herself and the three children to live a standard of living comparable to that lived during the marriage, exclusive of a savings component that she requested in the monthly amount of $30,000. She also sought $5,000 in monthly child support and for the husband to be responsible for all child-related supplemental expenses.

The trial judge acknowledged the existence of savings component during the marriage, but awarded a monthly permanent alimony payment of $7,600 based on a finding that the parties lived an undisputed “modest middle-class lifestyle” with a monthly budget of $14,516 (excluding savings). The $7,600 was calculated as sufficient to cover the shortfall in the wife’s budget after accounting for child support, monthly after-tax income estimated she could generate by investment of her share of equitable distribution (each party was receiving half of the roughly $5.5 million estate), and her after tax net income from part-time work.

Based on each party’s anticipated share of equitable distribution, the trial court found that each party had a significant opportunity to save and invest, even though the husband’s substantial income provided him with a far greater opportunity than the wife. Specifically, the court noted that the parties monthly average savings of approximately $87,000 was a “component of lifestyle” (whether for an early retirement or to enhance the parties’ economic security), but should be included in an alimony award “only [ ] to the extent it was necessary to ensure a dependent spouse’s economic security in the face of a later modification or cessation of support, which were not issues here.”

Even without a higher amount of alimony (inclusive of a savings component) the court noted that the wife could save (albeit at a lesser extent than that seen during the marriage) when considering:

  1. some “overlap” in the presented alimony and child support budgets;
  2. the wife’s right to claim the children as exemptions for tax purposes; and
  3. her “ability to work and retain earnings to use for savings . . . because of the maturation of the children . . . such that she would have more time to spend working if she chose to do so.”

The court also noted the wife would have no obligation to pay for college or any unreimbursed medical expense, the cost of extracurricular activities was covered by the “above guidelines” child support award, and if she wanted to work more she would be “protected against any claim that her alimony should be reduced or that she has lesser need,” and the alimony would likely never be reduced because of the husband’s income and assets. Summarizing its determination to exclude a savings component, the court held:

The [c]ourt finds that a permissible savings component which it elected not to do or not to include was because there are potentials for [plaintiff] to accumulate, earn, and otherwise be protected from a reduction by virtue of, one, reasons having to do with the current budget and the room in the budget to still save, the ability to work more without worry about a reduction in alimony, the investment opportunity that might enhance the return on the over $2 million that she will receive, the life insurance to protect against the death of the defendant, and the likelihood of a continued appreciation and increase in assets and earnings that . . . would protect her against any arbitrary . . . reduction in alimony based upon early retirement or otherwise.

The wife’s appeal followed.

THE APPELLATE DIVISION WEIGHS IN:

On appeal, the Appellate Division agreed with the wife’s position that the subject award allowed only the husband to maintain the standard of living experienced during the marriage, and that required Case Information Statement form, on its face, suggests that a savings component is a “fundamental element of the family lifestyle” because the savings category was specifically added to the budget portion of the form after its initial issuance.

Reviewing seminal New Jersey alimony law, the Court reminded that each party is entitled post-divorce to live a lifestyle reasonably comparable to that lived during the marriage, with neither party having a greater entitlement to do so than the other (as codified in the 2014 statutory amendments to the alimony law). As a result, the alimony award designed for the supported spouse to achieve such lifestyle that is ultimately the “touchstone for the initial alimony award.”

While noting how case law has long recognized that a savings component in an alimony award can protect a dependent spouse against the potential future termination of alimony, or to provide for future events such as retirement, the Court provided:

The most “appropriate case” in which to include a savings component is where the parties’ lifestyle included regular savings. Because it is the manner in which the parties use their income that is determinative when establishing a marital lifestyle, see Weishaus, supra, 180 N.J. at 145, there is no demonstrable difference between one family’s habitual use of its income to fund savings and another family’s use of its income to regularly purchase luxury cars or enjoy extravagant vacations. The use of family income for either purpose over the course of a long-term marriage requires the court to consider how the money is spent in determining the parties’ lifestyle, regardless of whether it was saved or spent on expensive purchases. The fact that the payment of the support ultimately is protected by life insurance or other financial tools, does not make the consideration of the savings component any less appropriate.

Rejecting the husband’s argument that the court appropriately considering savings through its equitable distribution award, the Appellate Division held:

The argument runs afoul of the rule that “equitable distribution determinations are intended to be in addition to, and not as substitutes for, alimony awards,” which are awarded to provide for the maintenance of the marital lifestyle post-dissolution. Steneken, supra, 183 N.J. at 299. Moreover, it is not equitable to require plaintiff to rely solely on the assets she received through equitable distribution to support the standard of living while defendant is not confronted with the same burden. As expressed under the alimony statute’s current version, the court must recognize that “neither party ha[s] a greater entitlement to that standard of living than the other.” N.J.S.A. 2A:34-23(b)(4).

In finding that its holding went beyond what most other jurisdictions provided regarding the savings component issue, the Court concluded:

We therefore hold that the Family Part must in its assessment of a marital lifestyle give due consideration to evidence of regular savings adhered to by the parties during the marriage, even if there is no concern about protecting an alimony award from future modification or cessation upon the death of the supporting spouse.

The issue of how to treat savings as part of the marital lifestyle under the type of circumstances present in Lombardi has long been discussed amongst family law attorneys without definitive judicial guidance.  Now that such guidance is here, this may not be the last we hear from the Lombardi family as perhaps the Supremes will ultimately weigh in.

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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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