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We have all seen cases where one of the parties is unreasonable if not out of control.  I am not talking about taking a hard of aggressive legal position.  I am not talking about taking an aggressive if not unreasonable settlement position – at least to start.  I am talking about a client that refuses to abide by an agreement or an Order.  I am talking about a client that intentionally misinterprets an agreement or an Order because on this occasion, the clear interpretation does not favor her – only to take the exact opposite interpretation the next time when it would be to her favor.  I am talking about someone with oppositional defiance disorder and/or someone who automatically rejects something, even if it is to his or her benefit, simply because it was suggested by the other party or opposing counsel.  I am talking about someone who could either tell the truth or lie, with no greater advantage in lying, but lies anyway.  I am talking about someone that cannot help to put their kids in the middle to hurt their spouse, knowing that they are probably hurting their kids in the process.  There are many other examples I can give based upon my many years as a divorce attorney.

In a perfect world, when this happens, assuming that it is not opposing counsel that is actually causing the problem in the first place, you would hope to be able to tell your client that cooler heads will prevail. Surely you would like to be able to tell your client that opposing counsel will get control of the situation and put the matter back on track, right?  Too often, the answer is no.  Why is this the case?  Sometimes, especially early on, counsel will take their client at face value, without seeking proof or verification.  That is to be expected to some degree though a better practice might be to get more information before going off half-cocked.  But more often than not, that is not the reason at all.  In fact, sadly there are too many practitioners out there willing to do anything that the client wants, without consideration for how it impacts their client in the long run, or their personal reputation.  Don’t get me wrong, I am not suggesting that an attorney should not zealously advocate for their client’s position.  They have to – that is their ethical obligations.  But before furthering the crazy and/or throwing gasoline on the fire, is it not better practice to try and get a situation under control.  Does it really make sense to unprofessionally echo a client’s unfounded attacks to deflect a provable, documented factual account of that client’s misbehavior?  Does it really make sense to let a client take an action or file a certification that will hurt them in the long run?  Though, on the other hand, when a client asks why the other lawyer is doing something in furtherance or defense of the bad behavior or why they haven’t stopped it, I have to remind them that we have no idea what advice the other party was actually given.  Sometimes, it is as simple is that as long as the client is paying them, they will do anything that the client says, no matter if it is good for the client or not.

Again, don’t get me wrong.  There are bona fide disputes.  There are reasons that motions have to be filed.  There are reasons that things need to be litigated.  But there are things that have no business not being brought under control.  When the lawyer absurdly enflames things further and/or defends the indefensible, they become part of the problem instead of being part of the solution.  That is unfortunate for the parties, their children and the system.  More and more, it seems that there are too many practitioners that are all too willing to give credence to the unreasonable or out of control, as opposed to trying to put a case on the right track towards resolution.  That is unfortunate.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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There has been a lot of talk about the lack of preparedness for last week’s snow storm that left many people stranded in traffic for hours trying to get home.  While many have argued, perhaps rightly, that the storm turned out being much worse the forecast, at the end of the day, as with many other things in life, people focus on the end results.  In fact, my bet is that most of the people who were complaining when schools called an early dismissal the night before, when the forecast was for much less snow than actually fell, were the same people complaining about the ultimate outcome.

Divorce is very much the same way.  While you may not know exactly when the process may start, few people are really, deep down, surprised that it is actually happening because the warning signs are there, whether it is adultery, lack of intimacy, constant fighting, lack of communication, bad communication, lack of agreement regarding parenting, etc.  This reminds me of a story that a client told me many many years ago.  He and his wife were in marriage counseling for years and he ultimately decided to tell his wife that he intended on pursuing a divorce during a counseling session.  The wife responded with epic histrionics suggesting that she was shocked.  The therapist ultimately told her that she could express any number of emotions but surprise wasn’t one of them.

The point again is that divorce is seldom a surprise.  Moreover, you don’t really know how bad the storm is going to be until it happens.  Most people want an “amicable” divorce but seldom agree on what that actually means at the beginning.  Very often, emotion takes over and derails what should be an “easy”, legally speaking, divorce.  On the other hand, some matters that appear like they can be very complex resolve easily because one or both of the parties are sufficiently motivated to get a deal done.

And because the ultimate divorce is seldom a surprise, if you think that divorce is possibility, you can do two things.  One is to put your head in the sand and then be overwhelmed by the storm when it comes.  The other is to prepare for the storm, just in case.  What are the things you can do to prepare?  Here are some things you can do:

  1. Familiarize yourself with your finances – income, assets, liabilities, budget.  Perhaps prepare a balance sheet of your assets and liabilities and start putting together a budget of your historical spending.
  2. Familiarize yourself with your spouse’s income?  How are they paid?  Do they receive a base and a bonus? Is the bonus guaranteed?  Is there a target bonus? Is there deferred compensation – stock options, restricted stock, RSUs, REUs, and/or any of the other of the alphabet soup of other earned income?  Finding out if there what is vested or not, if there is a vesting scheduling, when are these things usually paid, where have they been historically deposited, do they automatically convert to cash or stock when they vest, etc.
  3. Familiarize yourself with your spouse’s benefits and perquisites, including health insurance, other insurances, retirement plans, and the like?  Is there are vehicle that the employer or your spouse’s business (if they are a business owner)?  And if they are a business owner, is there a business credit card?  What things does the business pay for?  If there is a business, is their cash?
  4. While you are doing all of the above, start assembling historical financial documents.  Five years of tax, income, bank, brokerage, retirement and credit card information is a good start but if there are other seemingly important documents in the house, on computer hard drives or online, secure copies of those, as well.  And after you go about doing that, don’t leave the documents lying around the house or in the trunk of your car where your spouse can take them.  Make copies and secure them off site.
  5. If you have assets that are premarital, received via a third party gift and/or inherited, it is your burden to prove to a court that those assets are exempt.  If you can prove exemption, then they are not divided in equitable distribution typically.  It should be of no surprise that when a divorce occurs, these documents disappear, as well.  Accordingly, if divorce is a possibility, secure these documents as well.
  6. If there are valuable items that may “disappear”, you may want to secure them – eg. putting jewelry in a safe deposit box.  You would not believe how many times a wife’s engagement ring (which is legally exempt in most cases), disappears on the occurrence of a divorce.
  7. If custody and/or parenting time could be an issue, familiarize yourself with your children’s teachers, doctors, friends, etc. both at present and in the past.  Think about who may be witnesses regarding your involvement with the children.
  8. Research potential therapists for both yourself and your children.  Even if they are not needed at the moment, once the storm comes, they may be a resource that you want to avail yourself of.
  9. Identify a solid support system.  I am not suggesting that you tell the world that your marriage may be coming to an end.  Rather, identify for yourself the people that you believe you can rely on when the storm comes.
  10. Have a consultation with a divorce lawyer – even if you are not ready to proceed.  For one, you will get some education about your rights and responsibilities.  Fear of the unknown often paralyzes people.  Moreover, based upon your specific facts and circumstances, the above list to help you get prepared in case of the storm may expand.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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I recently represented a client at mediation during which the parties were able to resolve virtually all of their issues, save for the Wife’s claim that the Husband should make a significant contribution to her counsel fees.

It was the Wife’s position that the Husband had run up her legal fees with multiple order violations, refusal to turn over discovery, and by taking totally unreasonable positions; moreover, since he made more money than her, he had a greater ability to pay her legal fees.

It was the Husband’s position that the Wife had run up his legal fees with her own unreasonable positions.  He also criticized her for choosing lawyers who are more expensive than those he chose to engage, arguing that he shouldn’t be held responsible for her choice to do so.

With this being a major impasse for the parties, it seems inevitable that a judge will decide the issue either in isolation or together with a trial on other unresolved aspects of their divorce.

Because the Family Court is a court of equity, a judge determining whether to award legal fees to one side has to consider the parties’ relative financial positions, including their respective incomes, assets, debts, support obligations, and other relevant financial circumstances.  The Court also must give due consideration to the question of whether one party acted unreasonably, or in bad faith, or violated court orders, or refused to produce discovery and therefore thwarted efficient resolution of the matter.  The Court Rule allows for consideration of legal fees already awarded by the Court, for whatever reason.  Perhaps there was a pendente lite contribution to legal fees for which the moneyed spouse should be credited.  Or, perhaps there is a history of court order violations for which fees were awarded as a form of sanction.  Whatever the reason, prior fee awards must be considered.

Ultimately, the question of whether one side must contribute to the legal fees of the other side is a question of fact, for which the Court must consider the following factors:

  1. The financial circumstances of the parties.  
  2. The abilities of the parties to pay their own fees or contribute to the fees of the other party.  
  3. The reasonableness and good faith of the positions advanced by the parties both during and prior to trial.
  4. The extent of the fees incurred by both parties.
  5. Any fees previously awarded.
  6. The amount of fees previously paid to counsel by each party.
  7. The results obtained.
  8. The degree to which fees were incurred to enforce existing orders or compel discovery.
  9. Any other factor bearing on the fairness of an award.

But here’s the rub.  Just like any other question of fact, the Court must make findings based on evidence.  In other words, there must be a trial or at least a lengthy written submission including evidence produced as exhibits.  As parties, you have to decide:  are you willing to incur the fees to try the issue, or is the amount in controversy going to exceed the fees you would spend to have the judge decide?

And, importantly, what you may view as a clear cut bad faith action or unreasonable position taken by your adversary, the Court may not be so inclined to think is all that bad.  Submitting the issue of counsel fees for a judge to decide is most definitely a gamble, and like any other wager, you should assess the odds, cost-benefit, and the possible outcomes before making the decision to fight the issue to the bitter end.

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.

All Hallow’s Eve is upon us.  All month long, I have watched my favorite Halloween movies (Hocus Pocus, anyone?), visited haunted houses, carved my Jack-O-Lantern, and engaged in all the usual Halloween festivities.  But it occurred to me:  the scariest thing that many of my clients will go through in their lives is their divorce.  And there’s a reason why the ghosts, ghouls, zombies, witches, and hobgoblins of Halloween are trotted out each year to scare us – that feeling of being up against soullessness and inhumanity is terrifying.  And it’s how many of my clients feel about the people they are dealing with through their divorce process, whether it be their ex and/or his/her attorney, a mediator, or even a judge.

Here’s what it can be like:

Zombies Abound:  It can feel like everyone you are dealing with is a soulless zombie – even your spouse.  Suddenly, your spouse may act with no emotion toward you and will forget like the past years of your life together never happened.  For example, according to him or her, you’re not the loving parent to the kids that you know you always were.  His or her attorney will treat you with no emotion at all, acting at the direction of your spouse.

Likewise, the judges, experts, and mediators – whether on your side or not – have a non-emotional role to play.  They won’t necessarily care about the personal issues that are important to you.  They will look at your case in an agnostic, non-emotional way.

Witches Cast Their Spells:  Sometimes, it might feel like there’s a hex upon you and you just can’t win.  Or, it may feel like no matter how untrue or manipulative your spouse’s claims are, the judge or the mediator believe him or her, as if (s)he’s cast a spell over them.  No matter the situation, it may sometimes feel like you have no control or that everything is going your spouse’s way, for no discernible reason.

Vampires Suck Your Blood:  Maybe this is a little too “on the nose.”  While your lawyers aren’t going to be doing unnecessary work, divorces get expensive.  If you are the “monied spouse,” you may be paying for not only your own legal fees, but those of your husband or wife – and not only for attorneys, but perhaps also for various experts, or a mediator/arbitrator.  All while continuing to support the family during the divorce.

Frankenstein Lives:  I often use the term “Frankenstein” when referring to an agreement of any kind that has been drafted, then revised, revised again, and revised some more.  It often becomes a mishmash of different thoughts that each party had at different points in the negotiation, and when taken together, makes little sense as a whole.  This is NOT what you want the ultimate written agreement (or any interim agreements) to be.

So, how do you keep your divorce from becoming a Halloween-style nightmare?  Here are some thoughts:

  • Hire a qualified, conscientious, attorney with a good reputation.
  • Listen  to that attorney.  After all, you hired him/her because (s)he is qualified, conscientious, and has a good reputation.
  • Take control of the story, and change it if you have to.  If you feel like nobody is listening to you, then whatever it is you are saying is not resonating.  For example, if you are claiming that your spouse should have less parenting time because your child has been returned to you from parenting time with bumps, scrapes, or bruises, and the judge is not moved by this information because he or she views them as typical for a child of that age…then maybe you need to try a different argument, if you have one.  Or, if you are arguing that you have tried and tried to find a new job after being fired from your old one, but just haven’t been able to find anything at your prior income level, then maybe you need to stop explaining and start showing the Court exactly what efforts you have made.
  • Keep the written agreement simple, and only make necessary revisions.  While every word in an agreement is important, trust your attorney to ensure that the agreement says what you want it to say.  Don’t over-complicate it just because you insist upon one word being in the agreement that is not there, and don’t give in to the feeling that the attorney on the other side is trying to “trick” you with revisions.  That’s why you hired a lawyer.  In the end, you want an agreement that is easily understood by a third party who knows nothing about your case, because if an issue comes up in the future, you may be assigned a judge who is just that.

 

 

Last week, I blogged about whether you should settle your retirement alimony case and the ingredients that might go into that decision. To be honest, this “why you should or should not settle” question is only the beginning of what you might be facing when you decide it is time to retire and terminate your alimony obligations. There is, of course, also the “where/when/how” of all of it. And that’s quite a nebulous concept if you’re only now beginning to think about your “whys” and whether or not you should even broach the topic. Below, I’ll give you a run-down of the possible scenarios that will at least address the “wheres” and “whens” of your journey.

In my experience, there are several possible ways in which alimony cases resolve: (1) Immediate settlement; (2) settlement following a motion; and (3) a full Court hearing wherein a judge makes a decision as to your continued alimony obligation. Examining each scenario will allow you to put the concept of “settlement” into the context of your particular situation.

(1)         Immediate Settlement: This is the path of least conflict and resistance if your spouse accepts your offer with an eye toward a termination of support. This will, more often than not, begin with a “feeler” letter to your former spouse. The letter may indicate that you are retiring, the date of your proposed retirement, provide some detail as to your financial circumstances, and ask if a termination of alimony would even be considered. Sometimes, the former spouses may negotiate directly with one another, with guidance from an experienced matrimonial attorney throughout.

If successful, this is the most cost-effective and low conflict resolution. The specifics of any settlement would be memorialized in an Agreement and simply filed with the Court, at which point, it would become an enforceable document.

But don’t be mistaken. This path is not for everyone. If you went through a very high conflict divorce, or know you’re dealing with an unreasonable ex-spouse, you may want to skip this step entirely. In the alternative, you may write a letter and the concept of termination may be rejected immediately.

If settlement at this early stage is not successful for whatever reason, you may decide to pursue litigation. That would bring us to scenarios 2 & 3, described below.

(2)         Filing a Motion: To provide some background, when someone paying alimony experiences a change in circumstances (including retirement, other reduction in income, or they believe their spouse is cohabiting etc.), you file what is known as a “Motion”, which is a formal application to the Court. You would be required to submit your current Case Information Statement, Case Information Statement from the time of your divorce, tax returns and a narrative of events leading up to your motion and describing your circumstances along with the motion.

You further file a legal brief describing the case law, including Lepis v. Lepis, which is the seminal support modification case in the state of New Jersey. Under Lepis, an alimony payor is required to file a Motion and establish what is known as a prima facie change in circumstances. A prima facie showing is simply an initial showing (on its face) that demonstrates that circumstances have permanently and significantly changed such that alimony may ultimately be modified.

Several weeks later, you would proceed to Court. This is a formal court proceeding, with oral argument from counsel, but not testimony of the parties, no formal introduction of evidence, etc. In other words, it is not at the point where the Court would conduct a full trial yet based on what has been submitted.

The Court would then review everything and determine if you meet the burden of a prima facie showing. The Court will then move you past what we call “Lepis 1”, or the initial prima facie showing, and enter an order as to whether you should move to a “Lepis 2” analysis – i.e. whether the change is substantial, continuing and permanent. As part of this analysis, the Court may also consider whether there is sufficient reason to award counsel fees to either party in connection with the motion. Because a supported spouse’s financial circumstances may be more precarious than yours, the Court may be inclined to grant counsel fees to equalize the playing field or to provide her an advance for litigation.

During the discovery phase, you are permitted to do a full examination of the other party’s finances to try and substantiate your claim. This includes written discovery, depositions, subpoenas, etc.

Typically following or during discovery and related proceedings the matter may settle. The parties have exchanged the majority of their discovery and the payee spouse, at some point, realizes alimony will end and that some concessions will need to be made. At that point, the parties will come to the table, make a settlement offer which is negotiated or reach a resolution through mediation (sometimes the Court will order the parties to go to mediation).

(3)         Court Hearing:  The matter can sometimes move toward a more contentious conclusion via a court hearing. In that regard, if all possibilities for settlement are expended and the parties have passed the discovery phase, the matter proceeds to a hearing, and the Court will hear testimony, consider evidence and make a determination based on everything before it. It is akin to a trial.

Keep in mind that neither party is obligated to agree to an out of court settlement. But as you can see, settlement at the early stages of the games provides finality without having to subject yourself to the time and effort of full-blown litigation. You also would avoid the counsel fees that go in to the discovery and litigation phases. Of course, having counsel on your side with experience in retirement alimony case will help you reach a conclusion on your terms.

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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

There has been much ado about the new alimony statute. Obligors believe they are now in the driver’s seat when it comes to disposing of their alimony obligations. After all, the statute sends a message that alimony should at least be modified upon reaching full retirement age. Doesn’t it?

On the other hand, recipients believe that the nuances within the new statute provide them with a leg-up in terms of maintaining their alimony awards “as is”. After all, the statute provides that both parties should have been able to save for retirement in the years since the divorce. Doesn’t it?

The truth is, both the obligor and the recipient are correct. The new statute does not provide any bright line rule as to what a court must do when the obligor retires. It provides the Court, instead, with factors to consider and weigh when an obligor brings a retirement application.

It helps to think of your retirement case as if there is an imaginary chef baking a cake. The ingredients and proportions will inevitably change your end result. Likewise, every case has different ingredients and produces a different result. Of course, the chef, i.e. the judge, will also bring certain ideas into the case, that could change the result one way or another depending on the “ingredients” the litigants bring before the Court.

So that brings me to my question: should you settle your retirement case? In a word, maybe.

When I become involved in a retirement case, I tell obligors and recipients alike to think of their matter as a business transaction. Typically, most of the hurt that lingered post-divorce has dissipated. Maybe, the parties have moved on with their personal lives. Most people are ready to engage in a pure cost-benefit analysis to determine if settlement is right for them.

In order to do that in a retirement case, although a bit fatalistic, it’s important to consider the health and life-span of the obligor and recipient. For example, if a retirement application is brought when both parties are 80, a settlement would look quite different than an application brought at age 65.

It’s also important to consider the parties’ respective assets so that a lump-sum buyout can be considered and discussed.

Sometimes it bears repeating that it’s important to remember that it probably does not make sense to spend more money litigating a case in Court than you would have continuing to pay or receive alimony. Because, at that end of the day, even if you believe that you have the best ingredients and proportions, you don’t want to burn the house to the ground just to see if you can get the perfect cake in the end.

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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

33625628 – a couple of lawyers arguing a case in front of the judge

When you have to be in court, it can be a nerve-wracking experience.  As a lawyer, I frequently visit courthouses and judges statewide. But that’s me and not you! Here are some things to keep in mind for your appearance…

  1. Dress appropriately. Suiting is not required for litigants, but please do not show up in shorts and a golf shirt. Your attire shows respect to the formality and solemnity of the process.  Think business casual.
  2. Be on time! Except for the uncontrollable emergency or traffic delay, you should be there on time. Judges do not like to be kept waiting.
  3. Check your emotions at the door. This is not the time nor the place to let out that tirade you have been saving up.  Keeping your cool, if that means keeping your distance, is of the utmost importance.  Practice your poker face, deep breathing, and happy place – whatever will get you through.
  4. Do not bring an entourage. In some situations, one companion is acceptable.  Generally speaking, you need to face this on your own. Please, please, please do not bring a new significant other or the one person in your family that your spouse hates. This only exacerbates an already stressful situation.
  5. Do not bring your children. A courthouse is no place for children.  Especially when the visit has to do with their parents’ divorce.  Again, there are limited exceptions to this but unless you are told specifically by your attorney that you fall into one of those exceptions, do not do it.  If you have childcare issues, let your attorney know so they can coordinate.
  6. Pay attention. Everyone deals with stress differently.  Some people check out in stressful situations.  Try not to do this.  Listening to what the judge and attorneys have to say about your case is important.
  7. Ask questions. If you feel like you are missing something, do not be afraid to speak up.  A good attorney wants their client to understand and meaningfully partake in the process.
  8. Expect to be there all day. Unlike television, court is rarely a quick and neat visit.  In every county in New Jersey, judges, staff and court administration handle thousands of files.  Emergencies happen at the courthouse.  Things take longer than anticipated.  Interruptions happen.  You or your attorney cannot control these circumstances.  Plan for the worse and hope for the best!
  9. You might be left waiting alone. It is not uncommom for a judge to ask to speak to the attorneys alone in chambers.  There is no secret plotting happening behind closed doors.  Judges often use these meetings to help get a better feel for a case or to express some concern they have so that issues can be addressed efficiently and with sensitivity.  It can be a good thing for your counsel to have this opportunity to speak freely to the judge handling your case.
  10. You’ll likely have to come back. It is rare that you only have one court appearance in a family law matter.  There are several mandatory appearances in a litigated case.  Be prepared for these.

Sandra C. Fava, Partner, Fox Rothschild LLPSandra C. Fava is a partner in the firm’s Family Law Practice, resident in its Morristown, NJ office. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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A few months ago, I posted a blog “Mind Your Manners” about how a party’s attitude may play a role in a judicial determination.  This issue arises again in the recent unpublished decision of Sahai v. Sahai, confirming again that credibility is key in litigation.

In Sahai, the appellant/ex-husband appealed a trial court orders sanctioning him $20,000 for his failure to bring the parties’ child to court-ordered parenting time with his ex-wife, as well as to pay her counsel fees on multiple applications adjudicated at the trial court level.  The trial court ordered the parenting time pending a plenary (evidentiary) hearing regarding the application of respondent/ex-wife to vacate the Property Settlement Agreement (divorce agreement) in which she agreed to forego any parenting time with the parties’ severely disabled daughter, claiming that her now ex-husband had coerced her into signing the Agreement.

The court ordered the parenting time session to occur for one  hour at a library with their daughter’s medical assistant present.  The session never occurred, apparently for medical issues even though her medical assistant was to be present.  The parties then agreed in a Consent Order to three separate one-hour sessions at the library.  Appellant never complied with any of those visits.  Ultimately, he was sanctioned and ordered to pay Respondent’s counsel fees in multiple orders for which his reconsideration applications were denied.  During this protracted litigation that occurred  between 2014 and 2016 – approximately two years – Appellant also filed criminal charges against his ex-wife that were administratively dismissed, filed a lawsuit against his former attorney that was dismissed with prejudice, and filed a lawsuit against his ex-wife’s attorney in federal court that was also dismissed.  If that’s not enough, Appellant failed to adequately produce discovery, including about his financial circumstances.

So, what happened?  Not surprisingly, the Appellate Division affirmed the trial court’s order for both the sanctions and counsel fees awarded against Appellant.  First, given that he failed to comply with discovery, he was in no position to argue that he could not afford the counsel fees or sanctions.  Second, not only did he defy a court ordered parenting time session, but he then willfully defied a Consent Order in which he agreed to three parenting time sessions.  His ex-wife ostensibly signed the Consent Order based on this representation.  Additionally, the trial court warned him about the ramifications of his actions prior to issuing such orders.

As to counsel fees, the Appellate Division deferred to the trial court, as trial court’s make credibility findings… there’s that word again.  Ultimately, it was Appellant’s “obstructionist litigation” that delayed the plenary hearing for years despite the trial court’s patience. There was no excuse for such actions. He had periods in which he was represented by capable counsel, although he represented himself at times.  The Appellate Division specifically stated:

“Deference should be afforded to the trial court’s factual findings regarding Rooney’s willful non-compliance, his ability to pay, and the reasonableness of counsel fees, all of which are supported by substantial credible evidence in the record. The imposition of sanctions and attorney’s fees was a reasonable exercise of judicial discretion.”

 

Kid counting money

So, here we are again with a willfully non-compliant litigant who refuses to produce adequate discovery and comply with court imposed and agreed upon Orders, now facing judgments of tens of thousands of dollars against him and in favor of his ex-wife.  The decision on the plenary hearing is pending, but it’s possible that Appellant’s behavior at this level may also impact his ex-wife’s claim that he coerced her into signing the Agreement at the time of their divorce and, of course, a counsel fee award.  We have to stay tuned…

With the stress of litigation upon you, please remember that it’s better to be the “bigger person”, follow orders and mind your manners!  That does not mean you have to throw away creative legal arguments to prevail or your right to seek legal remedies when you disagree with an Order – your attorney will guide you down that path.  However, having a good attorney cannot always shield you from your own actions – ultimately you should listen to counsel and, of course, the Court.  Take discovery for example – Is producing discovery fun? No.  Are there sometimes things you do not want to give the other side?  Of course.  But at the end of the day, they will find it or an adverse inference will be drawn against you for your failure to produce it on your own, as in this case where the Appellant lost his ability to argue that he cannot afford the counsel fees or sanctions he was ordered to pay.  Don’t put yourself in that position.

Lindsay 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.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Several years ago I did a post on this blog of the same name and then updated it some time later. The list then, as re-compiled below, are things to do if you really don’t want to settle your case.  As I said before, everybody is entitled to their day in court if they want it, but what if there is nothing that can be gained from it?  What if you can’t win?  What if forcing the matter to trial will create other legal issues? What if trial will cost tens of thousand of dollars or more?  Here is the list:

22. Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.

21. Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.

20.  Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.

19.  Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.

18.  Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.

17.  Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.

16.  Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.

15.  Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.

14.  Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way.

13.  In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.

12.  Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.

11.  Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

10.  Ignore your expert’s advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know?

9.  Ignore your lawyer’s advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn’t make sense.  Plus, how can they prove if you’re lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no “horse in the race” are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn’t apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse’s attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim “Pigs get fat, hogs get slaughtered.”  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don’t worry that this conduct may set your case back.

The above was and is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Most clients hire their lawyers for the lawyers expertise and experience.  There is an expectation that the lawyer will guide the client through the process, given them the strategic options, and counsel them regarding settlement positions and opportunities.  Sometimes, client’s hire lawyers that they think they can control, who will do their bidding whether or not the strategy is sound or the legal position meritorious.  Others still, hire their attorneys because of their expertise and experience, yet cannot help themselves and seek to control every detail.

While often, collaboration with a client can create excellent results – after all, who knows the details of their life better then the client.  That said, there is a difference between collaboration, and the client imposing her or her will on the aspects of the case that should be the domain of the attorney.  Even when the client is an attorney, it is dangerous if they think that they know better then their attorney how to present their case.

Several years ago, I represented the wife of an attorney in particular – a litigator.  At a very early mediation, he came into the room boasting, if not threatening that he has tried more cases than anyone in the room.  Throughout the case, he made his lawyer take legally unsupportable positions, played games with discovery, tried to hide assets, failed to provide full information to his own forensic accountant and then, at trial, clearly directed his attorney’s questioning of the witnesses.  Needless to say, after an 11 day trial, he was crushed on every issue.  Moreover, his conduct both before and after the trial caused him to pay a substantial amount of his wife’s legal and expert fees.  His attorney was made to look bad and his forensic accountant was essentially called a liar – albeit in nicer terms – all because of the husband thinking he knew better than anyone else.

I am presently involved in another long trial where it is clear that the opposing litigant is running the show.  His direct examination was unusually long and contained numerous self created exhibits that were testified about in unnecessary detail.  Moreover, the same was true for the expert testimony, both direct, and more importantly on cross examination.  The client created questions at best, unduly lengthened the process, and at worst, could arguably hurt both his own credibility and credibility of his own expert.  Aside from causing the cost of the matter to increase exponentially, the insistence on controlling the questioning could actually negatively impact his case.

The bottom line is that client’s should be careful to not insist that collaboration turn to actual control thereby negating their attorney’s experience and expertise.  While it is not unusual to want to maintain total control, the attorney usually knows the law better and can better implement the jointly agreed upon strategy. The attorney will have a better sense of the big picture and is better able to view things more objectively than the client.  Sometimes less is more.  Not every question needs to be ask.  Not every fact needs to be presented if it doesn’t help, or perhaps can hurt your case.  If one of the allegations is that the spouse is overly controlling, etc., the controlling conduct at trial can prove that point almost better than the other spouse’s testimony.  In short, a client should be careful when insisting on taking over a case from his lawyer.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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