General NJ Family Law News & Updates

Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some rules of thumb in settlement negotiations. However, there are those cases that do not result in such a typical manner and the reasoning often comes down to presentation.

For a trial that I conducted in February 2016, the Appellate Division recently upheld the court’s decision awarding the plaintiff/wife 100% of the equity in one of the parties’ businesses with a value of $133,000 (where she primarily worked) and 40% of defendant/husband’s $214,000 interest in the other business (where he primarily worked), as well as determining that each party retain his/her individual retirement accounts following a long-term marriage of over 30 years.  Wife’s retirement accounts exceeded those which husband disclosed – being the key word. In addition to this equitable distribution award, the Appellate Division upheld the trial court’s 40% counsel and expert fee award for the wife, totaling $31,388.10.

Why did the wife prevail in this way? It’s pretty simple based upon a reading of the decision – her husband just could not help himself as a litigant or a witness.

As a litigant, he “stonewalled” discovery, failed to pay the support obligation order during the pre-trial phase of the litigation (a.k.a pendente lite support) that was initially agreed upon, and failed to file a complete Case Information Statement (the bible in family law cases that lists income, budget, assets and debts).

As a witness, he would not even give a straight answer for his address. While he may have thought he was being cute when he responded that the wife could have the value one of the companies, and do “whatever she wants to do with it”, the trial court and the Appellate Division used the husband’s own words against him to find that he abdicated any interest in the company.

The husband’s lack of credibility resulted in a unique comment of the Appellate Division when it stated that the trial court’s counsel fee opinion was upheld even though the trial court did not specify the factors considered under the applicable Court Rule, R. 5:3-5(c). The Appellate Division opined that “…the discussion throughout the opinion made clear he had those factors very factors in mind”. The Appellate Division again cited to the husband’s bad faith (without utilizing the term) by citing to the trial court’s findings that the requested fees were “’fair and reasonable’ and that much work was required due to the ‘recalcitrance of [the husband]’”, as well as that the wife “faced substantial difficulties” to enforce court orders and agreements, and ultimately prepare for trial.

So, what’s the takeaway? What you say and how you act at each stage of the case is important… someone is always watching and, oftentimes, that someone is your spouse’s attorney who will jump at the opportunity to show the court how you have oppressed your spouse. Having handled this trial and appeal, I can confirm that cross examining the husband and finally having the opportunity to point out all of the misbehavior was fun, but not for him. You don’t want to end up in that seat! Mind your manners even in the heat of the moment and, as painstaking as it may be, always remember that it’s better to be the “bigger person” – the games will catch up to the other!


Lindsay A. Heller, Associate, Fox Rothschild LLPLindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

After much debate and, ultimately, a change in the governor’s mansion, New Jersey last week became only the second state (Delaware was the first) to ban – without exception – marriages involving individuals under 18 years of age.  Four other states ban the practice, but allow for a path to such marriage under certain exceptions, while similar legislation is under consideration in Ohio and Pennsylvania.  19 states still do not have a minimum marriage age, and 7 states allow for marriages involving children of 14 or 15 years of age.

The law, which, from a general perspective, is designed to protect minors (especially women) from being forced into arranged marriages, changes New Jersey’s prior law that allowed 16 and 17 year olds to procure marriage licenses with parental consent (16 year olds also required judicial approval).

*Photo courtesy of Alpha Stock Images – link to – http://alphastockimages.com/

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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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The Appellate Division recently issued a published (precedential) decision in the matter of G.M. v. C.V. providing some clarification on procedures that must be followed when a transcript is not available to serve as a record of a prior hearing.

In G.M., a domestic violence restraining order had been entered between the parties in 2004.  Fast forward to 2016, when the Defendant sought to dissolve the restraining order.  According to the Defendant, the existence of the restraining order was making it very difficult for her to find employment and, she argued, it was no longer necessary for the protection of the Plaintiff.  She alleged that the parties, who had children together, had numerous interactions over the years since the entry of the restraining order without incident, had even toured colleges with the child together and entered into a business transaction together.  Simply put, the Defendant claimed that the Plaintiff no longer feared her or had a need for the protections of the restraining order.

Significantly, domestic violence restraining orders cannot easily be dissolved.  Parties cannot simply agree to dissolve them.  Even if both parties tell the Court that they are in agreement, a judge must still hold a hearing to determine if there is “good cause” to modify or dissolve a domestic violence restraining order.  This is because, due to the nature of domestic violence and the dynamic of fear created by the aggressor, “consent” from a victim of domestic violence may not be genuine.  Rather, it may be the result of fear and manipulation or control by the victimizer.

N.J.S.A. 2C:25-29(d) requires that modifications or dissolutions of a domestic violence restraining order can only be granted by a judge who is the same judge who entered the restraining order, or “has available a complete record of the hearing or hearings on which the order was based.”  The “complete record” includes the transcript of the final restraining order hearing, which allows the Court to be familiar with the full history of domestic violence and best evaluate the victim’s continued fear of the perpetrator.

Unfortunately, in G.M., the transcript was unavailable because the audio recording of the final restraining order hearing was blank.  To do nothing would deprive the defendant of her right to due process – the court cannot just sit by and refuse to hear the issue as a result of the unavailability of a transcript.  Therefore, the Appellate Division took this opportunity to establish procedures for addressing the issue of the absence of a transcript in these hearings:

  • When the transcript is available, but simply has not been provided by the moving party, this is a fatal omission and will result in the denial of the application to modify or dissolve the restraining order.
  • If the moving party has documentation from the judiciary showing that the final restraining order hearing cannot be transcribed in whole or in part, the court must determine if this problem was caused by the moving party.  The Court must also determine if the transcript is totally unavailable, or if it can be recovered.
    • If there is no audio recording to transcribe or it has been corrupted, and the moving party was not the cause of this malfunction, the court must then determine if the moving party can produce evidence to establish a prima facie case that a change of circumstances exists to modify or dissolve the restraining order in the absence of a transcript.  The Court must also determine if the judge who entered the restraining order entered a detailed statement of reasons, which would allow the Court to determine if the record is complete.
    • If the Court cannot assess whether to deny the application or whether, based on the record before it, it is satisfied that there is prima facie evidence of a change in circumstances that may warrant modification or dissolution of a restraining order, then the Court must reconstruct the record of the FRO hearing, with the goal of producing a record that “provides reasonable assurances of accuracy and completeness.”

Once the record is reconstructed or there is deemed sufficient information from the available record to determine whether a change of circumstances exists warranting modification or dissolution of the restraining order, the Court can move forward with a determination as to whether good cause exists to do so.

While this case dealt strictly with the issue of domestic violence restraining orders, one can imagine other scenarios in which these procedures can be adapted where transcripts of prior proceedings are unavailable, but necessary to educate a judge about testimony given during earlier but related proceedings.


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.

One of the most common questions posed by clients is – how is alimony determined?  Unfortunately, there is no easy answer to that question, and it is often dependent upon the facts and circumstances of a given matter.  The law does not provide for a formula, even in the final version of the amended alimony statute that passed in late 2014, and requires that trial judges consider each of the factors outlined in New Jersey’s alimony statute (N.J.S.A. 2A:34-23(b)) in rendering an award.

As seminal New Jersey case law provides, the standard of living established during the marriage serves as the “touchstone” for alimony, with, whenever possible, the alimony award to be set at an amount that will “enable each party to live a lifestyle ‘reasonably comparable’ to the marital standard of living.”  The amended alimony statute confirms that both parties are entitled to such a lifestyle, which is often determined based on a review of the parties’ Case Information Statements, testimony and supporting financial documentation.  Experts may even be utilized to prepare what is commonly referred to as a “lifestyle analysis” to help provide a more accurate indicator of what the marital lifestyle actually was, and how expenses were divided between the parties and children, if any.

When negotiating an alimony resolution, however, practitioners often employ a so-called “rule of thumb” whereby the ultimate alimony figure is based on a certain percentage of the difference between the parties real/imputed levels of income.  Debate between practitioners in applying this approach remains alive and well, especially in high income cases where utilizing a formula may undermine the notion of ensuring that the marital lifestyle is taken into consideration.  Additionally, the formulaic approach oftentimes utilized in negotiating an alimony resolution takes into consideration the alimony deduction to be received by the payor on his or her tax returns.  With the new tax law eliminating the deduction for alimony agreements/awards reached after December 31, 2018, even this approach will likely undergo significant changes.

To that end, case law confirms that a trial judge cannot employ an income-based formula when determining an initial alimony award or modifying one previously established (even if the initial alimony award was reached in settlement based on a formula).  This principle was recently affirmed in Waldbaum v. Waldbaum, wherein the Appellate Division reversed a trial judge’s use of a formula in determining alimony in a post-divorce proceeding.  Specifically, despite generally describing the lifestyle as one of “high-class”, and analyzing the alimony factors, the trial court employed a formula utilized in the parties’ settlement agreement when alimony was first agreed upon.  In reversing the trial court, the Appellate Division held that “by setting alimony using a formula the alimony became untethered from the marital lifestyle and defendant’s needs.”  The resulting alimony amounts had “no reasonable correlation to the evidence adduced regarding the marital lifestyle or needs.”

Thus, while reaching an alimony resolution provides parties with great flexibility in determining the award, a trial judge must follow the above-detailed requirements to ensure that the lifestyle is not only taken into consideration, but that all statutory factors are considered in rendering a final decision.

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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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