I am not generally one to make resolutions at the New Year.  Most of them would involve eating, and I have a sweet tooth, so I am destined to fail. That being said, I do try to make some improvements to my work life each January and in addition to cleaning my desk, they include giving my clients some resolutions they should think about.

Copyright: underverse / 123RF Stock Photo
Copyright: underverse / 123RF Stock Photo

Number 1.  Don’t be a jerk.  Your dissolution/custody/post-judgment matter has enough difficult substantive issues involved without having to deal with unreasonableness for the sake of making things difficult.  It is so often tempting to lash out at someone who has acted in a childish, mean spirited manner against you.  However, while it might make you feel better for a hot minute, the longer effects of your actions may be that they come back to bite you in the derriere.  In today’s day and age, almost all of our actions are captured in some form of technology, whether it be a post on Instagram, a comment by someone other than you on social media, or a response by the recipient of your actions in an email.  Trust me- a judge will not be amused.

Talk to me first before you act against your ex.  Let’s discuss what was done to you and what is an appropriate response.  Remember, we judge ourselves by our intent, but we judge others by their actions.  This oftentimes necessitates taking the high road.  Let’s make sure we know how you will be judged by others (most notably a judge or expert).

Number 2.  Don’t ask me to be a jerk for you. I am a professional.  And I am courteous.  Add the two together, and I will practice professional courtesy.  Which means I will respond to a fellow attorney in a timely manner; I will pick up the phone, and yes, if I am asked to consent to an adjournment I will do so unless it will hurt my client’s interests. Trust me, I am doing this for you.  Why?  Because the fact of the matter is, you are going to need something later in the case, and chances are if I am a jerk, the other attorney will be a jerk right back at me.  More importantly, if I get a reputation of being a jerk, I am never going to get a break from the judge on your case. When you have a school play scheduled for 3:00 in the afternoon the day of a settlement conference, don’t hand the judge a reason to deny our request to move it.

Number 3. Understand my occasional scheduling issues.  You are important to me.  I promise. And it has nothing to do with the amount of money you have, the complexity of your case, or whether you are male or female.  I strive to do the very best I can for each one of my clients.  However, stuff happens.  It happens to you, and it happens to others.  And when one of my other clients has an emergency, I can only be at one place at one time. I am fortunate to have amazing colleagues who work with me, so it is rare that attention cannot be given to you.  I once was almost fired by a client when I had to reschedule an appointment to review documents when another client had been physically assaulted  by a spouse and I had to rush to the courthouse to get an order of protection.

Number 4 (and more important than number 3).  Understand that I have no power over the Court’s scheduling issues.  Trust me, I am just as frustrated at the fact that we have waited for over a month for an order from the Court.  I do understand that it is having a detrimental effect on you and your children.  However, the fact of the matter is that judges in NJ have approximately 400-450 cases, and there is only so much that can be done in a day or week.   Don’t ask me to call the court every day or write a scathing letter.  Trust me, this is not the way to endear you to the judge.

Number 5. Take a deep breath.  Your case is like a Bell Curve.  You are at the apex and it stinks.  I will help you get to the bottom, but it will not happen immediately.  Your matter will be over, and you will be able to move on with your life.

 

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 609-895-6712 or jmillner@foxrothschild.com.

Our partner in our Chester County, Pennsylvania office, Mark Ashton, just wrote an interesting piece on our Pennsylvania Family Law Blog entitled “”Tis the Season”  about how the time between November 1st and the end of the year used to be the quiet time for new matters and how he has found that this year has been different.  We have found that to be the case, as well, as noted below.

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That said, for many divorce attorneys, the busy season starts after the first of the year. For the last few years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. This year, the calls started in November at a pace more robust than in prior years.  Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

Whatever the reason, we await those who see 2017 as a chance for happiness or a fresh start. Happy New Year?!?!

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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.

Connect with Eric: Twitter_64 Linkedin

They say a picture is worth a thousand words, and in the recently unpublished (not precedential) case of C.S. v. B. S., Judge Jones determined that 25-years’ worth of family pictures destroyed by a scorned ex-wife are also worth $5,000.00.

In C.S. v. B. S., the parties divorced after approximately 25 years of marriage. They had one child, who was emancipated. The parties’ entered into a Matrimonial Settlement Agreement, and agreed, among other things, that the husband would have the right to share in the family photographs and videos that were kept in the in the marital residence, where the wife continued to exclusively reside.

However, shortly after the parties’ divorce, the wife refused to allow plaintiff to have or copy any of the photos or videos of the marriage. The husband sent the wife an email requesting her cooperation to retrieve the photos and videos and she replied that she had disposed of them because he had allegedly been unfaithful during the marriage and no longer wanted to be reminded of him.

24276086 - old letters and antique family photos parents, grandfather; grandmother; children nostalgic vintage pictures from ca 1900

The husband sought enforcement of his rights and damages for the wife’s breach of the marital settlement agreement and the Court scheduled the matter for a hearing. At the hearing, the Court did not accept the wife’s testimony that she returned the husband’s childhood pictures (one torn into pieces), completely skipping over the last 25 years of the husband’s life, due to her interpretation of the parties’ agreement. Further, the wife did not indicate how or when she disposed of the photos, but testified that she believed it was before the divorce. She could not answer why, if she disposed of the photos before the divorce, the settlement agreement provided for plaintiff to share in the photographs and videos. The Court concluded that the wife’s refusal to provide the husband with the photos and videos of the marriage was a violation of the husband’s rights.

So what is the husband’s remedy? Unfortunately, the 25 years of family photographs cannot be replaced, so the Court had the task of fashioning an appropriate remedy.

First, the Court found that, in divorce proceedings, there is an implicit duty of good faith and fair dealing between parties. This means that each party has an obligation to treat the other fairly and respectfully during the divorce process, including honoring each other’s rights to marital property and adhering to terms of settlement agreements and consent orders. Thus, the wife breached the duty of good faith and fair dealing by depriving the husband of the family photos and videos.

The Court came up with three scenarios based on the Wife’s testimony: (1) she disposed of the photos and videos after the entry of the marital settlement agreement; (2) she disposed of the photos and videos before the entry of the marital settlement agreement; and (3) the photos and videos were not destroyed and still exist.

The Court opined that under scenario 1, if the wife disposed of the photos and videos after the entry of the marital settlement agreement, such action is a violation of the husband’s rights under the express terms of the document.

Under scenario 2, if the wife disposed of the photos and videos before the entry of the marital settlement agreement, such action is a violation of the implicit obligation of fair dealing, as the wife could not have possibly honored the agreement regarding the sharing of the photos and videos if they no longer existed. Under this scenario, the wife’s conduct “would constitute more than a mere breach of contract, but an actual misrepresentation”. The court also added that, when parties file divorce pleadings, the property of the marriage is deemed, in custodia legia (i.e. property under control of the court) pending resolution. Thus, the wife’s complete disposal of the marital photos and videos during the divorce process is evidence of a lack of good faith and fair dealing.

Under scenario 3, if the photos and videos were not destroyed and still exist, the wife is committing the tort of conversion (i.e. the intentional exercise of dominion or control over a property which interferes with the legal right of another to possess or control same).

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Regardless as to which scenario was the truth, each entitled the husband to damages from the wife and thus the Court was next tasked with crafting a remedy for the husband. Generally, when a party wrongfully takes another’s property, the aggrieved party is entitled to damages, which are assessed under either a market value analysis or cost replacement analysis. However, in this case, due to the unique nature of the photos and videos neither of these analyses apply, since there is no market value or cost replacement value for personal family photos and videos. Therefore, financial compensation and/or reasonable sanctions are the most logical and available options in the Family Court, even though assigning an amount may prove complicated.

Prior to assessing financial compensation and/or reasonable sanctions in this type of scenario, there must be a foundation of evidence to support that:

(a)        the other party actually did take, damage or destroy the property, in violation of the aggrieved party’s rights;

(b)        the aggrieved party genuinely wanted the items in question; and

(c)        the violating party knew or should have known that the aggrieved party wanted the property and that such property had a particular personal value or significance.

Here, after a consideration of the parties’ testimony and other evidence before the Court, Judge Jones found that the wife, by disposing of or destroying the family photos and videos, met all of these factors and awarded the plaintiff $5,000.00.

Before concluding, Judge Jones reminded us that each case and each issue is fact-sensitive and that damages are to be assessed based on the specific facts of each case.

That being said, revenge comes with a price. Here, it was $5,000.00 and 25 years of lost memories, but let this be a warning: before you act, whether it be out of anger, spite, or revenge, think twice about how much it may cost you for that moment of satisfaction.

It’s a story as old as time in the New Jersey courts. Alimony is set based upon the income of parties to a divorce, but then years later, a spouse loses his or her job and is unable to continue to make the agreed upon or ordered payments. What is a Court to do?

61199328 - the word of alimony on wooden cubes

In the old days, prior to the enactment of the new alimony statute, judges had certain checklists, gathered from all the law that they typically used to assess whether to obligor would gain relief. You can find that checklist I compiled in 2013 here.

However, now that the new statute is in effect, the question becomes, how should judges treat on obligor’s loss of employment?

Mills v. Mills, an opinion by Judge Jones of Ocean County, approved for publication, provides some guidance on the issue.
In the Mills case, the parties divorced in 2013 after a 13-year marriage. At the time of the divorce, the parties agreed that the Husband would pay the Wife alimony in the amount of $330 per week for 8 years, as well as child support in the amount of $200 per week. This award was based upon the Husband’s income as a district sales manager for a company selling residential and commercial flooring services, earning $108,000 per year and the wife’s income as a teacher, earning $59,000 per year.

In January 2015, after 12 years of employment at the flooring company, the Husband lost his job. The job loss was involuntary; it stemmed from his employer’s decision to restructure its business plan and eliminate the Husband’s position.

The Husband began searching for a new job immediately. In April, 2015, he received an offer of employment form another flooring company, but at a significantly lower salary of $70,000, with a $6,000 car allowance.

At this point, the Husband was faced with a difficult decision – does he accept the job at a lower rate, or decline the opportunity and look for another job closer to his prior income? Ultimately, he decided to accept the new job.

Initially after accepting the new job, the Husband continued to pay alimony at the rate of $330 per week. He had received severance pay of $35,000 and was able to temporarily supplement his income from there. However, as the year neared its end, the Husband had depleted all reserves.

The Husband filed a motion on November 24, 2015 for a prospective modification and reduction of his support obligations based upon a substantial change in circumstances. In the meantime, he earned a performance bonus of $6,000, bringing his total compensation t $82,000, which still constituted a $26,000 from his prior income.

The Wife opposed the motion, and questioned the circumstances under which the Husband lost his prior employment, and that even if the loss was involuntary, he had not demonstrated that he could no longer earn at least $108,000. She also stated that the loss of support would create economic difficulties for her.

The parties were unable to resolve their differences and the matter proceeded to a contested hearing. The Husband testified that when he began at the flooring company, he was earning $50,000 and gradually worked his way up to a salary of $108,000. The Court found that he testified credibly that he could not simply walk into a new position at a new company and immediately command the same salary.
Interesting, the Court began its legal analysis by expounding upon a “Catch 22” in which many obligors found themselves under the old statute.

…no matter what decision he or she made in accepting or declining a new position at a lower pay, that decision might subsequently be critiqued, criticized and even legally challenged by an ex-spouse who, in resisting a reduction in alimony, might contend that the supporting spouse made an inappropriate choice and therefore should not receive a reduction in his or her support obligation   … when a supporting spouse lost his or her job and then declined an offer to take a lower paying position…and instead kept searching for a higher paying position while seeking a reduction in support, the supported spouse would often argue that the obligor unreasonably bypassed an opportunity to earn at least some income that could have been used to pay some of the ongoing support obligation…

Reciprocally, if a supporting spouse accepted the offer for new employment at a substantially lower salary and then sought a reduction in support, a supported spouse would often argue that the obligor was underemployed because he or she accepted a position at a significantly decreased level of pay or proven “income potential”…

Judge Jones rejected the suggestion that there is a “one-size-fits-all” legal analysis for approaching and analyzing these types of issues. In that regard, he stated “imputation of income was a discretionary matter not always capable of precise or exact determination”.

After citing the amended alimony statute – N.J.S.A. 2:a:34-23(k) – for guidance as to how to analyze this issue. In doing so, he specifically referenced subsection (2), which expressly references that when an obligor loses his or her employment, a judge may consider the obligor’s documented efforts to obtain replacement employment or pursue an alternative occupation, as well as subsection (3) which provides that a court may consider the obligor’s good faith effort to find remunerative employment at any level in any field.

However, the Judge noted that the amended statute does not expressly establish or provide a specific standard for statutory analysis in situations when an obligor actually obtains new employment at a significantly lower pay, then seeks to reduce his or her support obligation over the supported spouse’s objections.

The Court concluded that as a matter of equity, fairness, as well as the most reasonable, consistent and straightforward analysis would be addressed by the following two-step inquiry:

(1) Was the supporting spouse’s choice in accepting a particular replacement employment opportunity objectively reasonable under the totality of the circumstances?
(2) If so, what if any resulting support adjustment should occur that is fair and reasonable to both parties, given their respective situations?

In applying this two-step inquiry, as well as the statutory mandates, the Court concluded that the loss of income was involuntary and that the Husband made legitimate efforts to obtain new employment in the same industry in good faith.

While the salary in the new position was lower, the Court found that the Husband nonetheless made an objectively reasonable decision in responsibly trying to begin at a new place of employment. In fact, the Court found that the Husband was very fortunate in this economy to find replacement work.

Nor did the Court find any objective evidence that the Husband was deliberately underemployed or unreasonably turned down or avoided other job opportunities at higher income levels.
After considering all the evidence, the Court reduced the Husband’s alimony obligation to $250 per week and his child support obligation to $194 per week.

With this decision, Judge Jones clearly articulated what I have personally heard many obligors say to me when deciding whether to move forward with a first, second or even third motion for a reduction in alimony based upon reduced income. Whatever step an obligor took, the supported spouse had a response; and one that was well supported by case law.

Either way, the supported spouse would argue that the reduction in income constituted underemployment and that the Court should impute income consistent with the obligor’s prior income.

Judge Jones’ decision provides a clearer analysis that Court should undertake in this all-too-familiar situation.
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Eliana Baer, Associate, Fox Rothschild LLPEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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.

 

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.

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.

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

37774117 - definition of word emancipation in dictionary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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

nirvana

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

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

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

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

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

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

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

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*image courtesy of google free images.