Estate and Trust Issues

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gavel A recent decision handed down by the Appellate Division in an estate litigation matter serves as a reminder of the all-too-frequent intersection of family law and trusts and estates law. The fact that this case, In the Matter of the Estate of Douglas Castellano and the Parentage of Gregory Bock, is a published decision only further underscores its importance in matters related to paternity, divorce, adoption and intestacy.

I am particularly fond of cases with fact patterns that read more like an episode of Jerry Springer than something you’d typically find in a legal text.  In this case, a woman, Elisa, ended a two year relationship with her partner, Douglas, and married a man named Gregory two months later.  Seven months after the marriage, Elisa gave birth to a child, Greg, Jr.  The child was named after Greg, Sr., who was listed as the father on the child’s birth certificate, despite the fact that Greg, Sr., knew he was not the father and that Douglas was well aware he was the father.

When Greg, Jr., was barely three years old, Greg, Sr., and Elisa divorced.  Greg, Sr., was granted visitation of the child and paid Elisa $80 per week in support.  Even so, Greg, Sr.’s relationship with Greg, Jr., tapered off and he only saw the child approximately two times per year until Greg, Sr., died when the child was a teenager. The child only learned the identity of his biological father from his mother at the age of 30. Following that reveal, Greg, Jr., and Douglas had a casual relationship, consisting of occasional phone calls and even fewer visits.  The relationship never blossomed further and Douglas was tragically murdered 8 years later in 2016.  Given his unexpected and untimely death, Douglas passed without a will.

Aside from Greg, Jr., Douglas’ only living relatives were his siblings. When they sought letters of administration for Douglas’ estate, Greg, Jr., filed a caveat which prompted their lawsuit. Under the intestacy laws, if Douglas died with no spouse, no children, and no living parents, his estate would pass to his siblings. If, however, Douglas was found to have descendants (in this case, children) the siblings would not be entitled to inherit.

On a motion for summary judgment, the trial court declared that as a matter of law, Greg, Jr. was Douglas’ sole descendant and therefore entitled to inherit from the estate. The siblings appealed, asserting that the trial judge failed to give sufficient weight to a presumption under the New Jersey parentage act, which declares a “man is presumed to be the biological father of a child if… [h]e and the child’s biological mother are or have been married to each other and the child is born during the marriage”.  The Appellate Division rejected this argument and affirmed the ruling below.

In so holding, the court found that the only question was whether Greg, Jr., was Douglas’ descendant.  Because a DNA test conclusively established paternity as such, the case could have been rather simple. However, the siblings raised the novel argument that given the statutory presumption that Greg, Sr., was the child’s father, representations about the child’s paternity during Elisa and Greg, Sr.’s divorce, and principles of equitable adoption, summary judgment was premature and improper.

As far as the statutory presumption of parentage, the court found that it was unequivocally overcome by the DNA test.  Moreover, the parentage act was designed to “facilitate the flow of benefits from the father to the child,” and not sever a biological link.

Under the theory of equitable adoption as argued by the siblings, Greg, Jr., should have been considered “equitably adopted” by Greg Sr., and therefore not the descendant of Douglas, given the the child’s treatment and representation as Greg, Sr.’s child at birth and during the divorce.  The court found this argument unconvincing and concluded that this case lacked the gravitas found in earlier cases which have utilized the remedy of equitable adoption.  Specifically, the court found that while Greg, Jr., took Elisa’s husband’s name, who was listed on the birth certificate, none of that was within Greg, Jr.’s control. Moreover, he was a toddler when Elisa divorced and had no input in the content of her judgment of divorce.  Indeed, the court found that the child’s fleeting relationship with Greg, Sr., after the divorce was insufficient to sever the irrefutable, biological link to Douglas. Moreover, the court opined that principles of equitable adoption have been historically employed to protect and enforce inheritance rights between parent and child, not destroy them.

The court boiled down the siblings’ case to the argument that the principles of intestacy should not apply because they had a stronger relationship with Douglas than Greg, Jr., did.  In a wholesale rejection of this argument, the court made plain that the laws of intestacy do not make such an exception simply because one relative knows the deceased better than the other.  The court concluded its opinion with the oft-cited reminder in estate litigation matters that if the decedent had intended a different result than that which the law provides, he could have (and should have) executed a will to that effect.

This case provides a cautionary tale for anyone who desires to have their estate pass in a manner inconsistent with the default rules laid down by the legislature. This is especially true for individuals who know they have legally unrecognized children who might pose an unwelcome surprise for loved ones in the event of an untimely death. For everyone else, it is a reminder that compelling circumstances are required to apply the principles of equitable adoption and formalizing relationships is the best way to predict how your relatives will be treated in family law and estate matters.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

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.

 

*image courtesy of google free images.

In the recent case O’Hara v. Estate of John B. O’Hara, Jr., the Appellate Division reminded us that even though the death of a party to a marriage ends that marriage, it doesn’t always end the divorce.  In Carr v. Carr, 120 N.J. 330 (1990), our Court examined what happens in the event that a party dies mid-divorce – after the Complaint has been filed, but before the divorce is finalized.  You might think that when this happens, the case simply ends – after all, if one party passes away, what is the point of the divorce?

For better or worse, things aren’t so simple.  If a party passes away mid-divorce, then the intent to divorce and to no longer be married has been expressed.  If one party’s death mid-divorce would lead to unjust enrichment for either the deceased party’s estate or for the surviving spouse, the Court must see the divorce through.  Otherwise, the surviving party might be unjustly enriched; what if he or she were to inherit everything in the deceased spouse’s estate, when the deceased party may not have wanted that?  The converse could also be true.  What if the spouse had specifically been provided for in a will, despite the divorce, but the bequest affords the surviving spouse less than (s)he would have gotten in the divorce case?

That latter is the issue at the center of O’Hara, where, in the midst of the divorce matter, the husband passed away.  While the divorce was pending, but prior to his death, the husband executed a Last Will & Testament.  The Will left the wife without any property interest in the marital assets, but created a trust for her benefit and support.  The problem with this was that, in filing a Complaint for Divorce, the Wife had asserted her right to an equitable share of the marital assets.  The trial judge permitted her to see that through by amending her complaint to include a claim against the husband’s estate.  The Court concluded that  “[w]ithout allowing the matrimonial matter to proceed to determine the value of the parties’ assets and what is available per equitable distribution, it will never be clear whether [the wife] received everything under the trust to which she is entitled, via equitable distribution.”

 

division of property

The Appellate Division affirmed.  Skeptical of the husband, the Appellate Division found that the marital estate had to be valued, and the wife’s equitable interest had to be determined before it could be said that the benefits to the wife under the trust established by the husband did not deprive her of what she would have been entitled to under the divorce.  Therefore, the lower court’s decision to impose a constructive trust – to effectively freeze the estate – was upheld and despite the death of one of the parties, the divorce litigation set to continue.

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.

Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.

kids

These are the facts that you need to know:

  • The parties were married in 1994 and had one child, who was born in 1995.
  • The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
  • Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
  • In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
  • In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
  • In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
  • During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
  • Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
  • From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
  • Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
  • Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

  1. willfully forsaking the decedent;
  2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
  3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.

 

*Photo courtesy of digitalart.

You’re at the Courthouse and your attorney has handed you for your final divorce documents.  It may be as a result of a negotiated settlement, or it may be as the result of a judge’s decision, but you are a single, independent person again.   But the end of the divorce is not exactly there yet. Various tasks and decisions still remain.

Division of Retirement Accounts:  If a retirement plan has been distributed between former spouses, steps need to be taken complete the division of any retirement accounts, particularly pensions, otherwise known as defined benefit plans.  Most these types of plans require a specialized order known as a Qualified Domestic Relations Order  to divide the account according to the terms of a divorce.  Others, including 401(k) plans, or defined contribution plans, may require a domestic relations order, or a specific form from the institution in which the funds are held.

Health Benefits:  In the event of an absolute divorce, a former spouse can no longer be a dependent on an individual’s health plan.  The non-subscribing spouse typically has a 30 day grace period in which alternate coverage must be obtained.  30 days go quickly however, and it is important to procure coverage.  Sometimes, it is wise to take COBRA benefits from the former spouse even for a few months just to make sure there is no gap in coverage if you have not researched other plans.

Beneficiary Designations on Life Insurance, bank accounts, and retirement accounts:   Unless you have obligation as a result of the divorce (often the case with some amount of life insurance), be sure to change your beneficiary designations.  If you die, the designations on accounts will typically govern who receives the benefit.  It may not matter if a judgment of divorce has been granted.

Estate Planning:  If it has not already been done, estate planning documents, including wills, health care directives and durable power of attorneys should be changed to reflect current wishes, and, if appropriate, to conform with directives in the divorce documents (trusts for minors, etc.)

Maintaining financial records: In the event that there is a future financial court proceeding concerning finances, it will be important to demonstrate what the financial circumstances were at the time of divorce.  Saving a copy of the Cases Information Statements that were filed at the time of divorce is important.

School records: Many times it is appropriate to inform childrens’ schools of a change in status so the records can accurately reflect any limitations in custody agreements. This is particularly true of one parent will be picking children up on certain days.  Also, most schools will arrange to have duplicate sets of school notices sent to each parent to avoid confrontation.

Closing out credit cards and other joint accounts:  It is helpful to obtain a credit report in order to make sure that all joint credit cards, or cards in which the former spouse is an authorized user have been identified and closed.

Making sure these tasks are attended to sooner, rather than later, will help with a smooth transition into the next chapter!

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

“What happens to gifts that were received during our marriage” is a question that is often asked early on in a divorce case. The answer can be as varied as the type of gift, from whom it was received as well as to whom the gift was given.

Under New Jersey’s equitable distribution statute, “all property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise or bequest shall not be subject to equitable distribution, except that interspousal gifts shall be subject to equitable distribution.”

With this generally means is that gifts between spouses during the marriage (think diamond necklace or Rolex watch for an anniversary gift) will be subject to equitable distribution and therefore included in the marital estate.

Gifts from third parties, however, are different. For instance, if your great aunt gives you a check for $10,000, and you put this into an account with only your name on it, it will be immune from equitable distribution. If, however, you place that $10,000 into an account that also has your spouse’s name on it, you have put it into the pot.

An issue that often comes up is when parents provide gifts to both parties during the marriage, but then at the time of divorce claim that it was only meant for their child. The court will then  look at factors such as when was the gift given, how the gift was used (in the case of a monetary gift) and make a determination as to the intent of the donor.

And speaking of grandparents, what about when grandparents, as they often do, start or contribute money to a college fund for the children? In these instances, it has to be determined whether the amount in the college fund comes “off the top” prior to assessing responsibility for college expenses against the parents, or whether it is counted as going towards only one parent’s obligation. Most typically, a court will determine it is the former. This is important to know when parties are involved in divorce proceedings or are contemplating a divorce and grandparents are making regular contributions towards college.

A thornier issue is when one spouse has received substantial gifts throughout the course of the marriage that has impacted on the marital lifestyle. This scenario comes up when a party to the marriage has wealthy family members who give regular gifts which support a standard of living that the parties would have been unable to sustain on their own. We see this in the context of estate planning on the part of parents.  While the gifts are certainly not part of the marital estate for purposes of equitable distribution, they can have an impact on support obligations. The courts have consistently held that the correct standard of living in determining amount of alimony was the way the couple actually lived, which may include gifts in addition to earned income.

Remember, however: even if a gift is deemed to be part of the marital estate, it may not be fair or equitable to divide it in the same manner as other marital assets.  It is critical to make sure that all of the facts and circumstances surrounding the gift are provided so that a fair resolution can be reached.

Several weeks ago, I wrote a blog post about “The Gray Divorce” phenomenon now sweeping the nation.  As I highlighted in my blog post, whereas the divorce rate among those 50+ was only 10% in 1990, it is now a staggering 25%.

While certainly an interesting statistic and perhaps a telling sociological commentary on the baby boomer generation at large, it is important to be mindful of the fact that a “Gray Divorce” may have certain practical implications in terms of retirement planning.

For instance, did you also know that your former spouse may be entitled to one-half of your Social Security benefit upon retirement?

This may impact one spouse’s overall retirement plan and therefore should be considered during a divorce.  As a result, it is important to familiarize yourself with the regulations surrounding Social Security spousal benefits, and carefully weigh all factors when even contemplating divorce at an advanced age, or even following any long-term marriage.

ID-10096077 (Photo courtesy of freedigitalphotos.net)

Here are some quick facts comprising most of what you need to know:

  • Length of the Marriage: Your former spouse can collect Social Security retirement benefits can be collected from you as long as your marriage lasted for 10 years or more.

 

  • Age of Election:  Both spouses must be eligible to receive Social Security benefits. Benefits may be elected as early as age 62 as long as the former spouse is also age 62 and the divorce has been final for two years or more.

 

  • Time for Filing:  You do not have to have filed for Social Security for your former spouse to be eligible to receive benefits based on your wage earnings.

 

  • How Calculated:  Retirement benefits for a former spouse are calculated as if you were still marriage.  At full retirement age, benefits are equal to 50% of what you would receive at retirement age.  Starting benefits early can reduce benefits as much as 30% (for those born in 1960 or later).

 

  • Effect of Remarriage:  Your former spouse must not have remarried.  A second marriage will result in the waiver of his or her spousal benefit unless that marriage ends in divorce as well.  If the second marriage lasted 10 years or more, the former spouse can be claimed on the spouse that produced the larger retirement benefit. If you are remarried, your former spouse’s spousal benefit will not impact your Social Security payment.

 

  • Effect of Death:  If you die, your former spouse’s benefit then becomes a survivor benefit equal to 100 percent of your Social Security payments, rather than the 50 percent spousal amount.

 

  • Former Spouse’s Work Earnings:  Your former spouse must not be eligible for a higher benefit based on his or her own earnings.

Of course, the above is but the tip of the iceberg in retirement planning, which requires a careful examination of all your income, assets, and liabilities.  However, this aspect should not be overlooked when attempting to paint a full picture of both spouses’ retirement strategy.

More information on this topic can be found at http://www.ssa.gov/retire2/yourdivspouse.htm

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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.

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.

Baby Boomers have always been trendsetters.  They were the first generation to rock out to bands such as the Beatles and they were the generation that was on the front lines of the feminist and civil rights movements.  Baby Boomers are culturally associated with rejection and redefinition of traditional values. And holding true to their reputation, Baby Boomers as a group are now trending toward later in life divorces.

Until recently, it was fair to say that the couple down the street, married for 40 years with three adult children, were not separating any time soon.  Indeed, in 1990, fewer than 10% of divorcing couples were over age 50.  Now, it’s one in four.

In an Op-Ed piece in the Los Angeles Times entitled A ‘gray divorce’ boom, the author attributes this trend to the dramatic changes in the meaning of marriage over the last several decades:

Today, we live in an era of individualized marriage, in which those who wed have high expectations for marital success. Americans expect marriage to provide them not simply with stability and security but also with self-fulfillment and personal satisfaction. Roles are flexible; the traditional breadwinner-homemaker model is no longer the status quo. Good spouses engage in open communication and are best friends. This is a high bar for many to achieve, let alone maintain over decades while juggling work and child-rearing.

The above-described cultural trends toward individualism, independence and gender role reversal have shaped the Baby Boomer generation.  It is no surprise, therefore that in a recent HuffPost Divorce piece by blogger Joy Cipoletti, the tag line read “What’s it like to be divorced in midlife? In a word, freeing.”

Baby boomers are not a generation that settles.  After all, as a generation, they are idealists, genuinely expecting the world to improve with time. Now, after raising their families, it is their time to fly out of their empty nests.

As Cipoletti concludes:

With all the challenges in the early years after divorce, I wondered if it was possible to enjoy life as a midlife divorced breadwinner mom, and to my delight, it is. By strengthening my spiritual connection and letting go of the picture I had for how my life “should” look, I have created a life I love today. I have rewarding work and time for things that are important to me: spirituality, great relationships with my kids (two now in college), friendships, exercise and nutrition, reading and more. From surviving to enjoying -– that’s what happened after my midlife divorce.

______________________________________________________________________________ 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.