General NJ Family Law News & Updates

It’s ok if you missed my New Jersey Law Journal article “Helicopter vs. Free Range Parenting: Endorsement of Parenting Style in the Law” published July 13, 2018. It’s been a busy summer. Now that you’re back in the swing of things, take the time to read this. I hope you’ll agree it provides an interesting perspective of the current state of the law in NJ and where we may be headed….

 

Once a parenting time schedule is established, parents’ next concern is the logistics with pick-up and drop-off.   Even with a parenting time schedule memorialized issues arise: lateness, inconvenient locations, interference with children’s activities, etc.   Most times these issues can be resolved amicably without judicial intervention.  But occasionally an application must be filed with the Court to address these issues.

Recently, in the unpublished appellate decision of Devorak v. Devorak, A-4325-16T2,the Appellate Court reviewed such a case.  The defendant in Devorak had filed a post-judgement motion to change the previously agreed upon driving responsibilities for visitation, amongst other issues.  At the time of divorce, both parties resided in the same town and they agreed that they would share alternate weekends for parenting time with the child and the defendant would pick up their daughter after he was done with work on Friday evening and bring her back on Sunday.  Defendant further agreed that he would “be responsible for all transportation for his parenting time, unless other arrangements [were] mutually agreed upon by the parties.”

Plaintiff later moved to New York City, but on November 22, 2013, the parties entered into a consent order where she agreed to relocate to New Jersey, and defendant agreed to temporarily provide transportation to and from his weekend parenting time until plaintiff moved back to New Jersey.  However, the consent order did not address the parties’ driving responsibilities upon plaintiff’s relocation to New Jersey.  Thereafter, plaintiff moved to Roseland, New Jersey and defendant moved to Ewing, New Jersey.  On September 20, 2016, defendant filed a motion seeking an order compelling “[t]he parties to share equally the driving responsibilities regarding parenting time,” amongst other issues.  Plaintiff cross-moved  for an order compelling defendant to “be required to do all the traveling in connection [with] his visitations with the parties’ child . . . ,” amongst other things, and argued that defendant received the benefit of his bargain in that he did not have to pay alimony and paid “modest” child support in return for doing all of the driving.

Despite Plaintiff’s arguments, the Judge determined that “it [was] fair and equitable [for them] to share in the transportation responsibility[,]” and granted defendant’s motion for the parties to “equally share driving responsibilities for parenting time . . . .”  The judge further ordered the parties to “agree [to] a pickup and drop off location equidistant between their current residences” of Ewing and Roseland.  In rendering his decision, the Judge reviewed the history of the parties’ residences from the time of the final judgment of divorce, as well as earlier orders dealing with parenting time.  On appeal, the Appellate Court stated that it agreed with the trial court’s decision for the reasons cited by the trial court judge, while also dismissing the appeal on procedural grounds.

Here is case where the parties bargained for a driving schedule at the time of their divorce, but due to subsequent decisions by the parties, including moving, the Court determined that the drop off logistics should be altered, despite the parties prior agreement. Whether or not you agree with the Court’s decision on this, the lesson to be learned is that these issues must be addressed with clear provisions at the time of negotiation.  Being amicable with a former spouse is certainly the best way to co-parent, however it is smart to also be prepared for future circumstances to the extent they can be planned for.  Driving responsibilities is one of those such issues.

As the line from one of my favorite White Stripes songs goes, “Fall is Here, Hear the Yell, Back to School, Ring the Bell…” I know when the new school year has arrived in my house because the boys are getting the last of their summer homework done, enjoying their last days of summer freedom and we are frantically shopping for new school supplies to stuff into their backpacks for their first day.

It is a crazy time of year to be a parent.  For divorced parents, however, the level of stress can be even greater and, as a result, increase the need for better planning and time management.  Grab a pen and a fresh notebook because here are a few tips for the divorced parent to start the new school year.

Become Calendar Masters:  Parenting time, classes, activities, child care, doctor and therapy appointments, sports, birthday parties and more.  The possible scheduling coordination and resulting issues are endless, and, as a result, it is very important to be on top of your game when it comes to knowing what is going on and when.  Using a web-based calendar with your ex can be invaluable to ensuring everything runs as smoothly as possible, and can even be a central hub for communications when emails and texts are not working well.  Consider Our Family Wizard and Google Calendar as two often used calendar options.

Talk to School Administrators, Counselors, Teachers, Coaches and More:  Getting these key figures up to speed on what is happening at home can greatly help them determine how best to care for and communicate with your child.  Have these conversations in-person, when possible, with the other parent and ensure that the both of you are copied on written communications so that no one is left out of the loop.  When appropriate, ensure that you and the other parent are both listed as primary contacts at school, and with sports teams, other activity groups, and doctors.

Attend Conferences, Events and Activities:  Know how your child is doing in school academically, socially, and athletically.  Try to keep everything as positive and normal as possible by attending sporting events, school concerts and plays, and classroom activities.  Try not to let these opportunities pass by without taking advantage, of course, understanding that work often takes precedent.  Your child may appreciate and remember such efforts more than you will ever know.

Keep an Eye on the Kids:  Growing up is hard enough without having to deal with family conflicts at home.  If you see your child having a hard time adjusting to the new school year, consider school counseling or private therapy to work through the situation.  School administrators and counselors may have private therapist recommendations tailored to your child’s needs.

Starting the new school year is always a daunting task for the entire household, but hopefully these tips will help you pass the test with flying colors.

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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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I know, I know. Summer is coming to an end and despite how much torrential rain we have had, it is still sad to see it fade off into the sunset as the days get shorter and colder. Having just returned from a shore trip with my family, it is incredible to reflect on hours and hours of planning that go into even a small vacation.

For divorced parents, the level of detail and coordinating necessary to schedule vacations often increases ten-fold, as you not only have to worry about when the kids potentially get home from sleepaway camp, when school starts, when school sports/activities start (mid to late August sounds just about right so that going on vacation is ever that much harder), but also when the other parent is going on vacation, how the children will react to separate vacations, scheduling calls with the other parent during the vacation, and so much more.

With that in mind, here are five tips for scheduling vacations:

  1. Give as much notice to the other parent as possible. The more notice you provide to the other parent of when and where you plan on taking a vacation with the kids, the better. Many of our settlement agreements include language containing deadlines as to when vacation plans must be made known, who has the first choice each year, and the like, so provide as much notice as possible to help ensure there are minimal conflicts.
  2. Provide all contact information, itinerary details, and international travel approvals to the other parent. It should go without question that you need to provide details about vacation starts, where you are going, how you can be reached (other than cell phone) and any other pertinent details. You should also note that international travel may require an additional level of approval, cooperation and consent from the non-traveling parent.
  3. If you are going away together, be on your best behavior. While somewhat rare, some divorced parents will continue to vacation together with the children. While avoiding conflict is not always easy for either married or divorced parents, do your best to provide a positive experience for the children, present a united front to the extent possible, and convey a sense of normalcy.
  4. Be sure that the kids stay in touch with the other parent while away. Communicating with the non-vacationing parent oftentimes takes on a greater level of significance during vacation, especially with potentially packed travel schedules and distractions. Try to set aside a specific time when the children can speak to/video conference with the other parent every day so that they keep in touch as best as possible under the circumstances.
  5. Try to keep the conflict at a minimum. Vacations are supposed to be fun and relaxing. In the days leading up to the vacation’s commencement, consider being flexible with the other parent’s parenting time or communication requests. Keep the acrimony to a minimum, especially if camp/sleepaway camp for the children just ended and time is short before the vacation starts.

While every divorced family has its own set of wrinkles and hurdles to overcome in planning the best possible vacation time with the kids, hopefully these tips will help ensure that you are more worried about getting in as much sun as possible than anything else.

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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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*photo attributed to jmesquitaau

Every day I represent people who believe that they are never going to move on from their divorce. These incredibly strong people have a difficult time understanding that there is, in fact, a light at the end of the tunnel because the divorce has understandably become the primary focus of their everyday existence. One of the hardest parts of the divorce process is oftentimes not getting to the end, but, rather, coming to a question of what to do next?  As you go through the divorce process, there are a few people who can help you make your way once the divorce is finalized and can help you find that light at the end of the tunnel.

The therapist – For you, for the kids, or perhaps for the entire family, a licensed and well-trained therapist with whom you are comfortable can be critical to helping you/your kids move beyond the divorce. A therapist can also help you work through what happened during the marriage, the divorce, and how to adapt to a brand new future.

The divorce coach – Different from a therapist in many ways, a divorce coach is trained to help you get through the divorce process and move forward with your life from a more practical perspective. A good divorce coach can assist you in developing a positive, forward-looking and goal-oriented strategy either early on in the divorce process, in the midst of its occurrence, or even after its completion.

The parenting coordinator – No one said co-parenting after a divorce is easy, and a parenting coordinator can help transition parents into more workable co-parenting roles or, in cases where high acrimony exists render recommendations on anything from where the parenting time exchanges should occur to when there should be make-up parenting time, and so much more.  For those parents who have seen their parenting role minimized by the other parent, the parenting coordinator’s existence and recommendations on these types of issues can help preserve your ability to have a say, and ideally protect your relationship with the children.

The accountant and the financial advisor – After years of the other spouse handling the household finances and making financial decisions, you are now faced with having to tackle these issues on your own.  The situation may be even more complicated if you were not involved in the financial decisions and do not have an understanding of your monthly expenses, assets and any debts you were left with. A sharp accountant and financial advisor can help put your mind at ease as you try to figure out where to go from here.

The personal support system – Ultimately, your family and friends will be your strongest support system both during the divorce process and after its conclusion.  Never hesitate to turn to those with whom you feel comfortable to help get you through what may be a very difficult, but finite time in your life.

Everyone has their own way of moving on once the divorce is over.  How you get to where you want to be at the end of that tunnel, however, is ultimately up to you.

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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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On a daily basis, I’ll go online and search for the latest in divorce news to see what people are talking about. Two recent stories were of particular note not for the facts involved but, rather, for the newsworthy legal outcomes. Each story is a reminder that in New Jersey almost every case proceeds on a no-fault basis, even though, on occasion, a spouse may want to proceed on a claim of adultery, extreme cruelty, or another fault-based ground depending on the situation.

U.K. Wife Denied Divorce after Forty Years of Marriage

In the first story out of the United Kingdom, the Supreme Court dismissed an appeal from a woman seeking to divorce her husband after almost 40 years of marriage when they separated in 2015. The husband contested the petition (which apparently does not occur often) on the basis that the marriage was a success and that they still had a “few years” to enjoy together.

The wife’s application was denied because U.K. law provides that a quick divorce cannot be granted unless the party seeking the divorce claims adultery, desertion or “unreasonable behavior” by the other spouse. Otherwise, a divorce can only occur in the U.K. if the parties have lived apart for two years and the parties consent to the divorce, or, if one spouse objects, after five years of separation. In other words, since the husband was contesting the divorce the wife has no choice but to remain separated from him until 2020 for the divorce to occur.

North Carolina Man Ordered To Pay $9 Million to Man with Whose Wife He Had an Affair

The next story involves a boyfriend who was ordered to pay a husband approximately $9 million for having an affair with the husband’s wife. The award was comprised mostly of punitive damages designed to punish the boyfriend, and approximately $2 million in compensatory damages. The husband commenced a lawsuit with claims of criminal conversation, alienation of affection, intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and battery. He specifically claimed that after learning of the affair his business lost both revenue and an employee (the wife).

Wondering how this type of lawsuit can be possible? Well, in North Carolina a person can sue a someone with whom his or her spouse has engaged with outside of the marriage for alienation of affection, and for criminal conversation, which involves extramarital sexual acts. Interestingly, this type of law still remains on the books of five other states. Incredibly, the claims held because there was no proof that the parties’ marriage was failing prior to commencement of the extramarital relationship, and third person being sued need not even have meant to harm the marriage to be found liable.

What Happens in New Jersey?

Had these situations occurred in New Jersey, the results would have been very different. As I mentioned before, most divorces in New Jersey proceed on the no-fault grounds of irreconcilable differences where, after six months of such differences, it is no longer reasonable for the spouses to remain married. As a result, the wife in the first story would have been able to divorce her husband without issue and without having to wait out the five-year separation period. As for the North Carolina man wondering how he is going to pay $9 million to the jilted husband, such claims could not have been brought against him in New Jersey with any sort of legitimacy.

Ultimately, while fault can – on very rare occasions – come into play in a New Jersey divorce, it is almost always an irrelevant factor to the outcome other oftentimes playing a significant role in the spouses’ emotions. New Jersey, like most other states, is more focused on allowing people to move on with their lives without pointing fingers, and without the time and expense involved in having to address these types of issues.

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Robert 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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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.

Connect with Robert: Twitter_64 Linkedin

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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