If I’ve heard it once, I’ve heard it a million times: “why don’t judges enforce their own orders or take hard lines against obstructers?” Many times, litigants feel powerless. Powerless to change anything; powerless to have courts take a firm position in favor of those aggrieved; and, powerless to be heard. Clients and attorneys alike feel this frustration.

This is despite the fact that there are specific rules in New Jersey that apply to non-compliance in the family part. Rule 5:3-7 provides for very specific types of relief in specific actions:

Non-Compliance with Custody or Parenting Time Orders:

(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parents failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.

Non-Compliance with Alimony or Child Support Orders:

(1) fixing the amount of arrearages and entering a judgment upon which interest accrues;
(2) requiring payment of arrearages on a periodic basis;
(3) suspension of an occupational license or drivers license consistent with law;
(4) economic sanctions;
(5) participation by the party in violation of the order in an approved community service program;
(6) incarceration, with or without work release;
(7) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(8) any other appropriate equitable remedy.

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In other words, with most family part actions, the sky is the limit in terms of what remedies can be utilized to secure compliance. Moreover, in other instances of non-compliance not covered by the family part rules, for instance, filing frivolous motions to harass the other party, or failing to make discovery, other rules apply that should serve to get a litigant to do the right thing.

So why the disconnect?

Well, it appears that some judges are beginning to take a hard stance against people who just feel like marching to the beat of their own drums, people without any regard for Orders of the Court, or resultant victimization to the other party.

For example, in August, a New Jersey couple was hit with a $543,000 sanction by a Manhattan judge for interfering with their son’s divorce. Justice Ellen Gesmer said that the couple “orchestrated the litigation” between their son and his wife, caused extensive delays, and launched a legal battle designed to “intimidate” their daughter in law.

The parties were married in 2005, and had one child in 2007. Tragically, the husband suffered a brain aneurysm in 2008, rendering him disabled. The wife initially cared for the husband, but was ultimately pushed out of the picture by his parents, who actually took him to a facility and hid him from the wife for several months in 2009.

When the divorce was filed in 2010, the grandparents ran the show on behalf of the son, and directed the son’s lawyers to delay the custody hearing for as long as possible so that they could pursue 50% custody of their grandchild, based upon the pretense that it was on their son’s behalf. By the end of the litigation, the wife’s legal bills were in excess of $928,000.

The judge ultimately found that the parents “willfully interfered with (their granddaughter’s) development of a positive and loving relationship with her father…(and) purposefully engaged in frivolous litigation.”

The judge also came down hard on the father’s lawyers, ruling that they engaged “in frivolous conduct by repeatedly making misrepresentations and knowingly false statements and claims to the court.” She ordered the lawyers to contribute $317,480.67 toward the wife’s legal bills.
The in-laws were ordered to pay, in total, a whopping $543,000.

Back on the other side of the river, in a recent Somerset County case, two opposing litigants were both ordered to perform community service for what the judge found was their willful non-compliance with their marital settlement agreement. The judge also warned them that they were to comply or face the possibility of sanctions.

It appears that judges are “getting real” about compliance. Whether it means the imposition of counsel fees against an overly litigious party or community service, a more clear message is being sent by these judges that non-compliance will not be tolerated.
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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.

Often, cases are given nicknames, sometimes by judges and law clerks, and sometimes by the attorneys.  Sometimes the nicknames come from who the people are – for instance, a case we had several years ago where both parties were models became the “model case” at the courthouse.  Sometimes, the names come from something that one or both parties did – a case where a spouse tried building a brick wall inside his house to divide the house before the divorce might have been the “brick wall case.” Right now, we have a case called “the money tree case.”

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We call this case the money tree case because, despite the husband’s ever present cries of poverty, money keeps materializing from out of nowhere for lavish spending.  Turn over the entire paycheck for support – sure – yet he lives like a king with no apparent income.  $40,000 is needed for a particular expense, it is wired in a day without disclosing where it came from.  Oldest child needs a car – no used car for her, she gets a new Mercedes.  In opposing a motion for counsel fees, his lawyer laments that he hasn’t been paid in a year and as soon as the motion is decided, he gets paid in full from sources unknown.

While at the same time of crying the blues that there is no money, expensive new watches appear which was a “gift.”  One if not two residences are being paid for though who knows by whom. There are expensive vacations.  Showering the children with presents.  The home equity line gets paid off, from no known source.

Of course, there is no transparency or up front disclosure about anything up front.  It is only after he gets caught, is there a lame excuse of a “gift” or a “loan” – with no proofs as to anything.

I, myself, have mused to the judge that I would like to know where to get a money tree too, because literally money keeps appearing in this case from no known source.

What is the takeaway?  When a litigant is crying poverty, you can’t let it go at that, especially when the lifestyle and known expenditures exceed the known sources of income.  Discovery must be doggedly pursued and the total cash flow (notice I didn’t say income because who knows how this person will characterize this endless cash infusion) must be calculated as best as possible.  That is the only way that support can be fairly decided.  Moreover, this money tree may also indicate an undisclosed asset or assets that is being tapped now, but which should be divided in equitable distribution.  When crying poverty, the wiping of the tears with $100 bills  is always a red flag.

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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.

Photo credit: Copyright: <a href=’http://www.123rf.com/profile_zenstock’>zenstock / 123RF Stock Photo</a>

In the early 20th century, Dr. Duncan MacDougall attempted to quantify the mass lost when the soul departed the body upon death. This study has perpetuated the weight idiosyncratically known as “21 Grams.” Although this theory has largely been dismissed by later studies, the better question is: how much weight does your soul bear going through a divorce?

This emotive calculus is best typified by a phenomenon that I have witnessed during my career, which only perpetuates the Apollo archetype. One does not even need to see the Wolf of Wall Street or Mad Men to appreciate this paradigm; you have lived it in some incarnation or know someone else that has.

I have regularly had women retain me whose husbands have recently self-destructed, both emotionally and financially, desperate to extricate themselves from the wreckage. They often appear in consultations with reams of returns and conspiracy theories of offshore accounts. The problem is that these women were largely in the dark, and sometimes intentionally oblivious, to the financial ruin that their husbands have been perpetuating for the better part of a decade.

Typically, these women are married to men involved in some form of finance or stock trading, often self-employed, that briefly masked their addictive and excessive personalities. In the early stages of the relationship, the husband’s focus was on providing for the family and building their relative fortunes. As a result, his rapid ascension and acquisition of jewelry, cars, and homes while the wife was preoccupied on raising the children, led her to gloss over the looming harbingers.

In time, the children grow, the tennis lessons plateau, and the novelty of the toys wear off. Slowly, the husband’s time out of the house grows more frequent, justified by a purported obligation to entertain clients. This leads to excessive rounds of golf and drinks. The wife begins to long for something more, or to be nostalgic about how they once were.

A Bloody Mary with brunch is replaced by a bottle of wine before dinner. The husband’s focus shifts and he begins to become less diligent about his work obligations. He takes shortcuts in order to support his family and his growing emphasis on travel and entertainment to create the illusion that nothing has changed.

He takes shortcuts because he cannot keep up the facade. He incurs larger risks, whether it be through day trading, gambling or other cavalier investments, to cover the losses-only to get in deeper. He fails to make estimated tax payments, maxes out a credit card, liquidates a retirement account, or refinances the mortgage. All the wife hears is, “Sign here, honey”, unless he just signs her name to keep her from asking.

He begins rationalizing that he will simply make up the shortfall at year’s end, or that he will get that bonus that is not guaranteed. Then he doesn’t get it. The walls begin to close in but he refuses to admit to his family that they cannot keep up with Joneses.

This high wire act to keep everything afloat creates stress that cannot be sustained, manifesting itself with fatigue, migraines or a nagging injury requiring pain medication and prescriptions. They are used in tandem with an abuse of alcohol, and in some cases, recreational drugs. Soon, the husband gets pulled over, into a scuffle at a local bar, admitted into rehab, or commits an act of domestic violence. The losses mount, the children’s college funds are gone, foreclosure notices arrive, collection calls abound and he has no choice to but to file for bankruptcy.

Hubris and excess are a deadly combination, especially when mixed with serotonin. So, inevitably, the husband blames the wife for forcing him to provide for a lifestyle beyond their means. She blames him for destroying the family and for the endless dishonesty. She is now in your office, wants off the Titantic, but does not want her life to change. She files for divorce and soon realizes that while he is broken, he will cling to her like a life raft for as long as the courts allow him to.

I have always said that the length of a divorce is tied to the time that it takes for the defendant to catch up emotionally to the plaintiff to come to terms with the fact that their relationship is over. This delay is magnified in situations such as these because the only source of power that the husband once had, money, has vanished. This leads to a defendant that refuses to participate in the divorce, and an increasingly frustrated plaintiff.

As a result, the divorce process begins to recreate the mythology of Sisyphus, as defendants such as these typically refuse: to get a lawyer; file an Answer and Counterclaim; complete a Case Information Statement; or comply with discovery. Instead, they preach reconciliation and systematically hijack the divorce process but refusing to actively participate in it. The courts in turn simply give the defendant endless opportunities to cure his omissions without consequence and fail to move the matter forward.

The defendant begins to put his proverbial head in the sand known as the Ostrich Effect, and becomes the Albatross or Millstone around the plaintiff’s neck. Animal idioms aside, the question becomes how to divorce someone that refuses to acknowledge that the process is even occurring. I would recommend considering the following ten tips in situations such as these:

1. Rather than chasing a life gone by, debunk your illusions about hidden money especially those offshore. You may end up spending more than you will ever find searching for a treasure trove that does not exist.

2. Prior to filing for divorce, consult with a bankruptcy attorney as the filing of a bankruptcy petition will only put the divorce process on hold down the road. You must come to terms with the fact that filing for bankruptcy may be unavoidable as many of the debts are likely in joint name anyway.

3. Your credit score is important, but less important that your ability to provide for your family today. You must accept the fact that the notion of credit is a luxury that you may have sacrificed by living beyond your means for so long. You can always rehabilitate your credit score in the future, provided that you pay for necessities today.

4. Work around the defendant wherever possible to educate yourself about your assets and liabilities, as you have to assume that he will not do anything voluntarily to make your exit strategy easier. Therefore, always utilize your subpoena power if the defendant refuses to comply with discovery rather than filing motions to compel.

5. Determine whether it make sense to default the defendant if he is not participating, and if so, do not waiver from that decision. It may the only leverage you have over him during the process.

6. If the marital residence is facing foreclosure, determine how long before the house is seized, as the process always takes longer than you would think because you will not locate alternate free housing.

7. If you cannot take the risk of foreclosure or coexist with the defendant in the same house, determine if you can afford to move out.

8. Consider looking for a job, or a better paying one to supplement your income in the short term because you likely cannot count on his timely payment of alimony.

9. If there are only debts to divide and no assets remaining, accept it and move on. Do not insulate yourself from the prospect of starting over with nothing.

10. Above all else, try to be cost effective in your decisions and conserve your counsel fee payments while you are waiting for the defendant to come to the table.

Sun Tzu once wrote that: “Supreme excellence consists in breaking the enemy’s resistance without fighting.” They key to freeing yourself from a defendant that refuses to participate, is to embrace the process, conserve your remaining assets and to pick your battles wisely.

The emotional and financial cost to you of seeking the instant gratification of being divorced today will be far greater than the onus of patiently waiting to be divorced tomorrow. At the very least, I can assure you that this burden will weigh more than 21 Grams.

In large part, the difference between the world you will inhabit after you are divorced will largely resemble the one before it, especially if you have children with such a defendant. Inevitably, the judge assigned will not permit him any more chances to comply with court orders or grant him anymore adjournments. While you cannot control how long a leash is given to the defendant, you can avoid turning it into a self-inflicted noose.

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Seth Parker is an associate in Fox Rothschild LLP’s Family Law Practice Group. Seth practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7538, or srparker@foxrothschild.com.

The golden words in this blog title once spoken by Robert Van Winkle (more famously known by another name) could and should be well heeded by family lawyers and litigants when trying to settle a case.  So why, then, are they so often ignored?  I recently attended a mediation in a case where, as soon as I walked into the mediator’s office, my adversary did not “stop” talking or arguing his client’s position, did not “collaborate” with me, my client, or the mediator to facilitate a settlement, and did not “listen” to anyone other than himself.  Not surprisingly, the case did not settle.  Not surprisingly, the parties left dissatisfied with the outcome.  Not surprisingly, the only progress that was made was when my client made proposals on various issues, since the other party refused to do so.  In fact, it was clear from the moment that we started the mediation that the other party had no intention on settling at all – a sentiment that I made clear in requesting to leave so that my client did not incur more counsel fees than she already had.

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Considering that the point of mediation is to actually settle a case, or to move towards a settlement, it always surprises me when this sort of conduct occurs, even in the wild world of family law.   With that in mind, let’s break down the three components as they relate to settling in mediation:

STOP:  It is no surprise that family law cases can often be quite acrimonious, with attorneys frequently arguing with each other at least as much as the parties.  Such conduct, however, ultimately serves no one.  Worse, one or both parties/attorneys often feel the need to essentially “run” the mediation by only allowing their points to be heard, talking over the other party/attorney, interrupting the other party/attorney while feigning insult should the same happen while he or she is talking, etc.  At the mediation I reference above, the other attorney seemed to believe that if he was the first person to assert his client’s position, it somehow meant more to the mediator.  The same can be said for the amount of time that he spoke – i.e., he believed that the longer he spoke, the more important his client’s position became. In that world, the case simply will not settle, and will only heighten the acrimony.  To that point…

COLLABORATE:  The entire point of mediation is to settle your case.  While you as the litigant may not agree with or like the other party or attorney (also very common), use your best efforts to work together, in a collaborative fashion, to achieve a meeting of the minds on the issues in your case.  Consider the positions being taken by the other party and, if reasonable, work with those positions to reach a compromise.  If you and your spouse are starting in a different “universe”, then there is only so far you can go.  If you are on Mars and she is on Venus, however, then keep the momentum going.  Ultimately, a good settlement is one that neither party is happy with because each side gave in on certain issues.  If one party refuses to budge, the case will continue, which is sometimes what that party wants to force the other party to give in, incur more fees, and the like.  In the mediation I reference above, the other party was completely unwilling to convey his prior settlement position to the mediator because he had obviously taken a step backwards towards a more aggressive approach and did not want to make it seem as if he had previously been in a more reasonable place.  While a litigant is entitled to engage in such conduct, then why mediate at all unless your entire goal through the mediation forum is to send a stern “message” that you will not be denied in what you want.  These tactics are almost always transparent to the other party/attorney, and will only cause the other side to push back, and the litigation will continue.

LISTEN:  Parties in a divorce matter often do not want to listen to each other (worse, the lawyers may love listening to only what they have to say).  Typically, progress can only be made when both parties are willing to listen to each other, understand each other’s position, and…collaborate.  I try to follow the mediator’s lead, and always encourage my client to do so, to get a sense of the other party’s intentions, while also providing the mediator with a level of respect that allows him or her the best opportunity to successfully perform the stated task of settling the case.  I found it interesting that in the mediation I reference above, my adversary outright refused to allow his client to talk, even when his thoughts or suggestions may have been helpful towards reaching a resolution.  Literally, for four hours, the other party sat silent in a room with his attorney, myself, my client and the mediator.  When the client spoke up and offered something useful, his lawyer would chime in that he really should stop speaking.  Again, what is the point of attending a mediation if there is no intention on actually settling, unless the only ploy is to scare the other party or send a message that there will be no compromise.

While no one can force a party to settle, the New Jersey court system certainly mandates parties to try and do so many times before a trial may ultimately occur.  Rather than wasting everyone’s time and money by turning a mediation into a private trial, better serve yourself and your wallet by working towards a resolution in mediation, rather than away from one.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

 

Last week, I blogged about the Information Asymmetry and how important it is for you to educate yourself going in to the divorce process so that you can meaningfully assist your attorney with your case.  But what about your attorney? And what about your Judge?  Isn’t it important for them to also be as informed as possible during the course of your case?

That is where experts come in.

ID-10095105 (Photo courtesy of freedigitalphotos.net.)

In divorce cases, there are oftentimes issues that arise that require the input of an expert.  For example, perhaps there is a dispute as to how much money your spouse is able to earn, how much his or her business is worth, or which one of you would be better to assume custody of the children.

Experts can assist your attorney present your case, and it can greatly assist the Court in deciding the case in your favor.  In fact, so important may an expert be in your situation that a Court may take it upon itself to appoint one on your behalf.

Below are the most common types of experts that you should consider when moving forward with your divorce, if appropriate given the facts and circumstances of your case:

1.         Vocational Expert:  This will tell the Court whether one spouse is underemployed and whether he or she is capable of making more money.  This expert will be important for the issue of support, which in New Jersey, is awarded in accordance with your earning capacity rather than your current income.  Also, if you or your spouse has been absent from the workforce for a period of time, a vocational expert will assist the Court in determining how realistic it will be to obtain employment consistent with prior earnings.

2.         Real Estate Appraiser:  If there is a dispute as to the value the marital home – which is typically the largest marital asset – or other property, such as a vacation home, second home, timeshare, etc., a real estate appraiser will be key.  This expert will assign a value to the property so that the equity can be appropriately divided.  He or she will also provide a detailed report outlining comparable sales prices for similar properties in your neighborhood, any improvements to your home which increase its value and make it unique, and an explanation of how the value of the property was decided. If this issue is not too hotly contested, it is typical to use a joint appraiser – that is, the parties will share the expert and the cost, subject, of course, to each party’s right to obtain a second opinion.

3.         Forensic Accountant:  A forensic accountant will take that mess of documents – bank statements, credit card bills, canceled checks – from your filing cabinet and turn it into a report that will tell your attorney and the Court about your marital income, assets, liabilities and expenses.  In short, this is the key document that will elucidate what your marital lifestyle was.  This will be important for the issue of alimony – which, in New Jersey, is awarded based in large part upon the lifestyle of the marriage – and equitable distribution.

4.         Business Valuator:  If one spouse has an interest in a business, it will be important to understand its value for equitable distribution purposes.  This does not only apply to commercial businesses.  It also applies to doctors’ practices, law firms and accounting firms.

5.         Custody Evaluator:  If custody is contested in a divorce, a custody evaluator will almost always be necessary.  The custody evaluator will make a recommendation, usually contained in a lengthy report, as to which parent is better suited to assume custody of the children following a divorce.  We often see cases with three custody experts: a joint or court appointed expert, the father’s expert and the mother’s expert – all with differing opinions.  It is therefore important to choose an expert that is highly qualified, well-respected in his or her field, and will command the attention of the Court.

Experts are not only helpful if your case goes to trial.  They are also helpful in settling your case.  For instance, if one party receives a favorable report, it may be used as a tool to obtain a advantageous settlement.  The opposite is also true.  If a party receives a report that is not as favorable, he or she may be more apt to settle the case rather than proceed to a hearing.

In sum, it is important not to underestimate the importance of experts when it comes to divorce.  They can be a great tool in settlement and a great asset on the stand.

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Eliana T. Baer is a frequent 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.

What do divorce and economics have in common?  Well, a lot. But today I am focusing on the unlikely link between the theory of information asymmetry – which deals with the study of decisions in transactions where one party has more or better information than the other – and the New Jersey Divorce App.

Smartphone Info  (photo courtesy of freedigitalphotos.net)

According to the acclaimed book, Freakonomics, the theory of information asymmetry accounts for why we hire a real estate to sell our house, an insurance broker to purchase long-term health insurance, and a funeral director to purchase a coffin for a loved one that has passed.

So what does the information asymmetry have to do with divorce, you ask?  Well, typically, when getting divorce, you hire an expert – a divorce lawyer – to handle your case.  After all, we are well-versed on all things divorce, custody, alimony, child support, equitable distribution, tax issues, and many other issues with which you may not be familiar.

In other words, the divorce lawyer has an information asymmetry that the client seeks to tap into to achieve the best result possible.

But what if you could bridge the gap between the lawyer’s vast knowledge and your own?  Would you achieve a better result if you could actively participate in the process?

Possibly.

Just like studying up on the housing market may assist the person selling or buying their house when working with a real estate agent, having more information as a litigant during the divorce process may help you inform your attorney as to the issues in your case.

That is where the New Jersey Divorce App can help tremendously.  It is designed specifically for the client.  It takes information regarding the divorce process, synthesizes it, and presents it to the client in a way that they can easily understand.

For example, when you download the app, you will see a section called “Divorce Information,” which covers the following topics:

  • Overview of the Divorce Process;
  • Custody;
  • Child Support;
  • Alimony; and
  • Equitable Distribution.

Click on these larger topic headings, and you will get to a myriad of subtopics; many of which will pertain to your specific case.  This section is a great compliment to the Finance Tracker and Asset Identifier, which allow you to interface with your attorney like never before.

So just like you would not buy or sell a house without doing a little research, don’t go into your divorce without making that information asymmetry a little less asymmetrical.

For more information and to download the New Jersey Divorce App, click here.

______________________________________________________________________________ Eliana T. Baer is a frequent 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.

Today, I am highlighting another feature of our New Jersey Divorce App, the Asset Identifier.  While the “Finance Tracker” gives you the ability to input your more commonly identifiable assets such as your house, car, boat, bank accounts, the Asset Identifier does something a little bit different.

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It is important when considering what each party will get in a divorce, to identify all of your assetS. This will guarantee you address all assets when dealing with settlement as well as monthly support payments.  However, many people with oftentimes overlook some less than obvious assets.

With the Asset Identifier, you have the ability to go through a list of assets that some people do not even realize should be divided in equitable distribution.  Eric Solotoff expounded further on what this may include in his February 2008 blog post – Hidden/Forgotten Assets.

For example, did you know that the following could be considered assets subject to equitable distribution in your divorce:

  • Frequent flyer mileage
  • Timeshare property
  • Country club memberships
  • Unused vacation or sick leave
  • Many, many more…

The Asset Identifier provides you with a full list of items that you may not have even considered in checklist form.  Once completed, you can then send it right off to your attorney so that he/she can make sure they are negotiating a complete and comprehensive settlement on your behalf.

For more information and to download the New Jersey Divorce App, click here.

______________________________________________________________________________ Eliana T. Baer is a frequent 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 I lost a dear client and friend, Bill*, after his long battle with brain cancer.  Bill was a man with a kind-hearted spirit and a gentle disposition – one of those “really nice guys” that you just wanted to bend over backwards to help.

While Bill was fortunate enough to spend his last days with his loving wife, surrounded by her family, he also had the misfortune of spending his last days in a dispute with his former wife, who was still collecting alimony from him, garnished from his Social Security Disability Payments.

A while back, I posted Alimony Modification – A Judge’s Checklist.  Bill had each and every box checked off – there was no doubt that his income was reduced, his former wife’s income had increased exponentially, and it was undisputed that he was disabled permanently and involuntarily.

ID-10026029 (Image from freedigitalphotos.net)

We attempted to get the judge to see that Bill could no longer handle his alimony payments from his meager income and that his alimony should be terminated summarily – that is, without a hearing.  After all, according to the seminal alimony modification case in New Jersey, Lepis v. Lepis, the Court need not hold a hearing on every single modification case when there are no facts in dispute, which was the case here.

Nonetheless, the court insisted that a hearing be held. This is an interesting contrast to the cases where judges refuse to hold hearings when denying motions outright which I blogged about previously – Motions to Reduce Support: When Applications Are Denied Without a Plenary Hearing, What’s Next?

However, Bill was too weak and too sick to move forward.  He was dying of brain cancer.  Our only option was mediation.

We settled the case shortly prior to Bill’s passing.  He was able to pass with the knowledge that there would be no litigation for his wife to bear following his death and that the case was behind him.

Because the case was settled, it will never be a published decision, it will not be analyzed by family law experts and it will not be bound in the annals of case law in our State.  But it still begs the question: if this factual scenario did not warrant the termination of support without a hearing, what factual scenario does?

*Name has been changed to protect client confidence.

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Eliana T. Baer is a frequent 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.

Oftentimes I hear from clients that gathering their financial information is the most daunting task they will face during the divorce process. They picture being buried in an avalanche of documents, account numbers and canceled checks.

The New Jersey Divorce App’s Finance Tracker can help.  In fact, I have recommended it to my clients before, with great results.

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The Finance Tracker is designed to help you focus in on the necessary information that you will need throughout the divorce process.

It is split up into 4 categories:

Income

Assets – like your house, car, bank accounts, retirement accounts, etc.

Expenses

Liabilities

Each section is then split into subcategories, which allows you to categorize the information in a way that makes sense.

Here is the best part: you can send the information directly to your attorney – straight from the app!

While the divorce process can be overwhelming at times, the New Jersey Divorce App, along with its Finance Tracker and other great features make things a little bit more manageable.

For more information and to download the New Jersey Divorce App, click here.

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

I came across several news outlets yesterday running a story about the “Divorce Fairy”, otherwise nicknamed the “Divorce Fixer” or the “Robin Hood for divorcing women”.  The story discussed a particular divorce finance firm located in Manhattan, which loans money to divorce litigants typically in the New York/New Jersey area, so that the litigant can purportedly fund his or her lifestyle, as well as litigation expenses, during what may be a lengthy and acrimonious proceeding.

The article went on to detail that a typical loan is approximately $250,000, at an interest rate of anywhere between 12-20 percent, where personal income and credit scores are not taken into account.  In determining whether to loan money, the firm evaluates the marital asset pool to determine the likelihood of the loan being repaid at the matter’s conclusion.  Considering that the typical loan is a quarter of a million dollars, the services provided are not going to be compatible with all matters or for all individuals.

As a threshold consideration, is such a service necessary?  On the one hand, it seems like a great idea, especially for spouses who had no control over the assets during the marriage and do not know how they are going to pay for a retainer, let alone the costs of an entire proceeding.  I recently had a potential client indicate that she wanted to retain our firm, but could not afford to pay a cent of a retainer – no credit card, no account access, no borrowing ability from family, friends, or a financial institution.  The other party had hired a very aggressive attorney and filed a Complaint for Divorce containing no less than eight (8) counts, and a motion to dismiss some of the counts was likely going to have to be filed at the outset.  In that case, considering the assets involved that would be available to repay a loan, she sounded like a good client for the services provided by a divorce financing firm.

Similarly, we recently represented a client who sought an amount of monthly interim support commensurate with that lived during the marriage.  The problem was, however, that she had no idea what the marital lifestyle was because the husband earned the income, controlled the assets, and paid the expenses.  This is not an unheard of scneario, but the trial judge took issue with the litigant’s inability to quantify the marital lifestyle, despite the husband earning upwards of $1 million annually.  Under these circumstances, being able to procure a loan from the financing firm would, perhaps, have eased her concerns about funding her monthly expenses and allowed her to litigate against a spouse with a bottomless war chest.

On the other hand, some would argue that such a service not only serves to unnecessarily drag out a litigation, but also circumvents many of the more standard avenues available to a payee spouse to ensure that her lifestyle is maintained during the divorce, and that she receives a counsel fee payment to “level the playing field” with the monied spouse.  This way, the monied spouse cannot financially intimidate the other spouse into an inequitable settlement or result.  When a motion to procure such relief is available where the monied spouse may be directed to pay interim support and fees from his income, rather than marital assets under his control, one can argue that it does not make sense for the non-monied spouse to incur such a substantial obligation to a creditor, with what some may consider to be a very high interest rate attached thereto (which is not surprising since credit scores and income levels are not considered).

It comes down to a cost-benefit analysis.  When a case finally reaches its conclusion, how does the non-monied spouse determine whether it was worth procuring the loan and its accompanying interest rate, rather than having filed a motion with the trial judge for interim financial relief, which would not carry the same debt obligation.  In addition, while evaluating an asset pool to determine if a loan can be repaid makes sense, oftentimes the asset pool available at the commencement of a matter is different from that at the end of the matter, for a variety of reasons including but not limited to, passive market forces.  While there are many cases where the loan can be repaid without difficulty, instances may arise where the non-monied spouse cannot repay the debt at a matter’s conclusion.  In the course of negotiating, the debtor spouse can ask that the monied spouse pay off the loan and any potential interest, or at least a part thereof, which is certainly that litigant’s right to request pursuant to various rules and cases applicable to support and counsel fee awards.

Ultimately, the divorce finance service is a very interesting and developing concept.  While it does not seem to be appropriate for every case or client, any litigant considering such an option should not only consider the debt obligation that will accrue in connection with such a service, but also how it measures in comparison to your rights as a divorce litigant, and other avenues of potential relief, such as the motion practice outlined above.  Be sure to discuss all such options with experienced matrimonial counsel before making this type of decision in connection with your divorce proceeding.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.