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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Just over a year after the New Jersey Supreme Court changed the standard to be applied in removal, or interstate relocation, cases, the Appellate Division in Dever v. Howell (an Appellate Division set to be published and, thus, will be precedential) is here to remind us that the burden to show cause for the proposed removal is not optional, cannot be an afterthought, and cannot be shifted to the party who opposes the move.

N.J.S.A. 9:2-2’s Cause Requirement and Bisbing

As a refresher, N.J.S.A. 9:2-2 is the New Jersey statute that addresses intrastate removal and provides as follows:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.  The court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

Put another way, if you wish to relocate out of New Jersey with your children, but the other parent does not agree, then the only way that you can engage in the desired removal is to file an application with the Court.  The Court may only grant the application if sufficient “cause” for the move is shown.  The purpose of the cause requirement is to preserve the rights of the other parent and the relationship between that parent and the children.

The definition of “cause” was the subject of the much-talked about August 2017 New Jersey Supreme Court decision, Bisbing v. Bisbing, 230 N.J. 309 (2017).  Prior to Bisbing“cause” meant different things depending on whether the party who sought to remove the children out of state was the parent of primary residence for the children, or whether there was a truly shared parenting arrangement.  Under the now defunct Baures v. Lewis standard, the Parent of Primary Residence had a less onerous burden to show cause, and needed only prove that 1) the requested move was being sought in good faith; and 2) that the requested move would not be inimical to the child’s best interests.  In cases where there was truly a shared parenting arrangement (i.e. neither party was deemed the “parent of primary residence”), a request to relocate with the children was treated as an application to modify the existing custody arrangement, and the court was required to conduct a best interests analysis to determine if such a modification was appropriate; if so, then this would serve as sufficient “cause.”

In Bisbing, the Court did away with these distinctions and essentially leveled the “cause” playing field.  Now, regardless of the type of parenting arrangement in place, “cause” is demonstrated by showing that the proposed move is in the best interests of the child.  In making this determination, the Court is to be guided by the statutory factors outlined in N.J.S.A. 9:2-4 which are the lodestar of every custody determination; however, the court is not limited to these factors in its analysis.  Indeed, the Bisbing Court specified that “[a] number of the statutory best interests factors will be directly relevant in typical relocation decisions and additional factors not set forth in the statute may also be considered in a given case.”  Any “additional” factors would be specific to the circumstances of the individual case.

Dever v. Howell and the Cause Requirement in Action

In a newly published (i.e. precedential) decision, the Appellate Division examined the cause requirement.  In this case, Mr. Dever and Ms. Howell had two children together.  Although Mr. Dever was the parent of primary residence, the parties shared joint legal custody.  In 2015, Mr. Dever considered relocating to Florida with the children, and the parties engaged in negotiations around that proposed move, including a parenting time schedule for Ms. Howell.  Although they were able to enter into an agreement in May 2015 regarding Mr. Dever’s proposed move to Florida with the children, ultimately he chose not to go, and he and the children remained in New Jersey.

In November 2016, Ms. Howell filed an application with the Court seeking overnight parenting time with the children.  The parties began to negotiate, and agreed to ask the Court to wait to hear Ms. Howell’s application in the hopes that they could resolve the issues amicably.  However, three days before the judge was to hear the motion, Mr. Dever told Ms. Howell that he and the children would be moving to South Carolina the next morning.  He offered Ms. Howell ten minutes to say goodbye to the children.  Despite Ms. Howell vehemently objecting, he moved the children to South Carolina without her consent, and without a court order permitting him to do so.

Ms. Howell ultimately filed an Order to Show Cause (an application seeking emergent, or immediate, relief from the Court) seeking the return of the children to New Jersey.  After a trial, the Superior Court judge found that Mr. Dever had intentionally removed the children from New Jersey without Ms. Howell’s consent and without filing an application so that the Court could determine whether there was cause for the move, in violation of N.J.S.A. 9:2-2.  The Court (correctly, in this writer’s opinion) found that the May 2015 agreement that the parties entered into for the removal of the children to Florida did not signify an agreement for them to be removed to South Carolina, as Mr. Dever claimed.  The judge ordered Mr. Dever to return the children to New Jersey.

Mr. Dever asked the Superior Court to reconsider his decision and, when that was unsuccessful, Mr. Dever appealed.  In both cases, he argued that the judge could not compel him to return the children to New Jersey from South Carolina without requiring Ms. Howell to show cause for him to do so.  In other words, he argued that – now that the children had been living in South Carolina for some time – the burden to show cause should shift to Ms. Howell to show that it was in the children’s best interests to return to New Jersey.  On appeal, Mr. Dever argued that N.J.S.A. 9:2-2 did not require him to obtain an order before moving.

The Appellate Division, rightfully, shot down Mr. Dever’s claim that he could remove the children without consent or a court order, and then force the other parent to demonstrate that it is in the children’s best interests to return to New Jersey:

According to plaintiff’s logic, defendant would need to file a motion to return the children, who he had removed in violation of N.J.S.A. 9:2-2, and as part of that motion, assume the burden.  Such an approach would encourage individuals to first remove children from this jurisdiction, then later seek court approval.  When the other parent objects beforehand, the process envisioned by N.J.S.A. 9:2-2 is for the parent seeking to relocate to first apply for an order permitting relocation, establish “cause,” then relocate only if permitted by the court.  The process does not permit a parent to show on an application to return the children that it would be in their best interests to do so.

When the other parent objects, the parent seeking removal of the children has the ultimate burden of proof by the preponderance of the evidence.  Requiring the burden of proof to shift to defendant to show that it would be in the children’s best interests, as a condition precedent to returning them to New Jersey, ignores the Legislature’s reason for requiring a preliminary determination of “cause” under N.J.S.A. 9:2-2 before the actual removal.  It is to “preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.”  Bisbing, 230 N.J. at 323 (citations and internal quotation marks omitted).  Under the facts of this case, preserving defendant’s rights to maintain and develop her familial relationship with the children required – by the plain text of N.J.S.A. 9:2-2 – that plaintiff first obtain an order, before removing the children, by showing “cause” existed for the relocation to South Carolina.

The Appellate Division made clear here that the old adage, “act now, and ask forgiveness later” does not apply in removal cases.  In order to carry out the intent of the statute – to preserve the relationship between the non-custodial parent and the child – one has to either obtain consent, or show cause before a court before the move occurs, not after.

Parents considering an interstate relocation with their children from New Jersey should take heed.  If you move with your children out of New Jersey without obtaining consent or a court order, you will very likely be required to return the children.  But even worse, when the Court ultimately does decide the issue of whether the move is in the children’s best interests, it may ding you for having taken matters into your own hands and moved without going through the proper channels.  Arguably, a failure to do so is a good indicator to the Court that you are not willing to co-parent or consider the child’s relationship with the other parent, and that will undoubtedly cause the Court to hesitate to allow the move.


 

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.

It is not unusual for parties to address their children’s college education in their Marital Settlement Agreements.  If children are college age or close, parties may actually specifically determine the percentages that they will pay for college costs (including pre-college costs such as SAT/ACT preparation, application fees, etc.)  If the children are younger, parties often acknowledge their responsibilities and define the types of things will be covered, but defer the determination of their actual percentage shares until the children are in their senior year of high school.  Very often, the agreement will provide that the children are required to apply for all available financial aid, grants and loans.  Since student loans may be easy to obtain to fund the vast majority of college, at times, parties may limit the loans that they are going to force their children to take to subsidized student loans (e.g. Stafford, Perkins) which are limited vs. private loans where they could borrow vast sums.  But if college is a part of support of children in New Jersey, at least children of divorced parents or never married parents (vs. children of intact families that don’t seem to have the same rights), can they be forced to take loans to pay for an obligation that is supposed to be their parents’ obligation?

The issue of student loans was one of the issues addressed in the unreported (non-precedential) Appellate Division opinion in the case of M.F.W. v. G.O. decided today.  In this case, the parties divorced in 2003 when their daughter was 5 years old.  Their settlement included an agreement to pay for college and also had the typical language requiring that the child, “… “shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.”  When it became time for the child to go to college, in this case Georgetown, at a cost of more than $66,000 per year, the mother sought the father’s contribution for both college and pre-college costs.  When the issue wasn’t resolved, an enforcement motion was filed.  One of the father’s defenses was that the daughter should have been required to obtain loans.  It should be noted that the father’s net yearly income increased from approximately $80,000 per year at the time of the divorce to approximately $217,000 at the time of the motion.

The trial judge rejected the father’s request to enforce the agreement and require the daughter to seek student loans, finding it to be “repugnant.”  As noted by the Appellate Division:

The court found it was “unfair and unjust” to require Jane to apply for “all loans, grants, aid and scholarships available to her” and to apply them first to the college costs because Jane “should not be bound to a contract which she is not a party to” and because the parents “have a legal obligation to support” her “and cannot compromise that obligation even if they both agree.” The court found this provision of the PSA is “repugnant and will not be enforced.”

That is an interesting holding because I have seen these clauses enforced all of the time.  Seemingly, this is because the court found that “the parties have the financial wherewithal to meet all of their daughter’s financial needs for college.”  But many times I have seen this provision in agreements where the parties seemingly have the financial wherewithal though sometimes I shake my head because unless parties have saved substantially for college, most people can’t afford to pay for college out of income, even at the income levels in this case.  Moreover, some people of means include these clauses because one or both believes that the children need to have “skin in the game”, or because their parents didn’t pay for their education, or for any other reason.  As noted above, if parents of means in an intact family make their child take out loans for college, that is their prerogative and the children probably have no recourse.

Back to M.F.W., the father appealed arguing, among other things not germane to this post, that the trial court should have enforced the parties’ agreement regarding loans and the Appellate Division affirmed the decision.  With regard to the student loan issue, the Appellate Division noted that agreements are usually enforced and should not be disturbed, unless there is a change of circumstances.  You get the sense that the court was inferring that this is what the trial judge meant in his decision, assuming it was not specifically stated as such.  The change of circumstances was the parties increased income.  Accordingly, they held that

The court found “unfair and unjust” the provision that required Jane to apply for loans and financial aid because it was the parents’ obligation to pay for college and they had the ability to do so. Defendant acknowledged that “[t]he parties both have significant financial resources and can afford to send their daughter to Georgetown University.”  The court did not err by not enforcing this provision.

We cannot say, given the parties’ incomes, that the court erred by not requiring Jane to obtain loans or other financial aid where she would be financially obligated to repay the funds in the future. Her parents had agreed to pay for her college expenses under the PSA. This would include any loans to pay those expenses.

There appears to be a contradiction here.  Was the loan requirement eviscerated because of the parties’ increased income or because the parties agreed to pay for college and that this would include loans?  The latter suggests that it was intended that the agreement to pay for college included the agreement to pay for the loans that the child was going to be required to pay.  That certainly is not the standard practice.  Moreover, if the court is interpreting the agreement in that way, then there would not be a change of circumstances because they are interpreting the agreement to pay for college to also be an agreement to pay loans too.

Left unsettled by this case is (1) whether you can make your kids take out loans and if so (2) whether that agreement means that you have to pay for the loans your children take out if you agree to pay for college.   If nothing else, though not precedential, this case provides ammunition to parents seeking to compel the other parent to pay for college, whether or not their Agreement requires that the children take out loans.

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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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As I wrote in December, the Tax Cuts and Jobs Act enacted at the end of last year, changed the taxability of alimony starting in 2019.   Specifically, while alimony is currently income to the recipient and deductible from the income of the payor, for agreements and judgments entered after December 31, 2018, that will no longer be the case.  Put another way, the ability to shift income so that it is taxed at the rate of the tax payer at the lower tax bracket will no longer be available.  As I noted, this will likely mean less after tax cash flow available to both parties under the new law (not to mention, the possibly unintended reduction on child support that may be caused since child support is calculated based upon the combined after tax incomes of the parties, i.e. the lower the net income, the lower the child support.)

Now we all know that there is no official “formula” or guidelines to calculate alimony in New Jersey.  That said, we have blogged many times before on the so called “rule of thumb” that many use to get a ballpark figure for alimony, and many more use to actually settle the issue, despite that fact that it often ignores the statutory factors and economic reality.  The way that this formula works is essentially this:  you subtract the actual or imputed income (if unemployed or underemployed) of the recipient from the payer’s income and then take a third of the difference and call it alimony.  I have heard it called the one-third rule – a third for the husband, a third for the wife and a third for the government – however the math really doesn’t work and typically the payor has more after tax income before child support is calculated.  Even after child support is calculated, it was unusual to see the alimony and the kids with more than half of the net after tax income, which meant that the payor lived on half of the net income for himself and the recipient and children lived on the other half, or less.  The fairness of this result can be debated on another day.

That said, because the “formula” contemplated taxes in it’s “theory”, seemingly, that formula will not be able to be used once the tax change really goes into effect.  My guess is that people will look for some new formula that has the same result but there are several problems with that.  With less dollars to go around, a formulaic approach that ignores actual marital lifestyle is likely to be very unfair to the recipient.  Moreover, given the complexities (and quite frankly, the unknowns) of the new tax code and the fact that different business types will be taxed in different ways, to the extent that a one-size fits all formula ever worked, it cannot work now.  I was at a recent seminar where a slide was shown of a doctor and a plumber with the same gross income, but a very different net income, given the difference in how their businesses are treated under the new code (not even including the perks.)  And speaking of perks, things that might have been written off as business expenses but added back to income for support purposes may in many cases, no longer be deductible business expenses which could similarly reduce net cash flow available for support.

In reality, more consideration is going to be have to given to the true after tax cash flows of both parties so that fair alimony and child support results are reached.  We have software that creates those calculations but I expect in the future, we will have to input many more variables to see the true after tax cash flow.  I would also expect that there will be more use of forensic and tax accountants to help with these calculations so that the most fair result is arrived at.

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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 is an old adage in litigation “know your judge.”  Essentially what that means is that you should find out as much as you can about the judge you are appearing in front of both so you can try to understand what the outcome might be but more importantly, so that you can may a presentation to the judge that she/he will respond positively to.  Some judges will let you go on an one.  Some judges have little patience and you have to get to the point.  With some judges, it seems like the last person to speak wins so you want to make sure you get the last word in.  Others sit there stone faced and say nothing at all.  Some are very interactive with settlement and others are not.  Some have substantial family law experience and others do not.  Some do little to settle and push cases to be tried and others don’t really want or believe that any cases should be tried.  To the extent possible, knowing your judge is an arrow in a lawyer’s quiver that helps them best represent their client.

Does the same thing apply to mediators?  The answer is yes and more importantly, in most cases, unlike the judge who gets assigned to a case, it is the lawyers that have to select and agree upon a mediator.  Of course, you want to select a mediator who you think will most favorably view your case, all things considered.  We had a recent matter where opposing counsel rejected upwards of 20 mediators that we suggested, many retired judges, and would only agree to one or two people that she suggested.  Our guess is that the lawyer perceived that all of the mediators who she had issues with also had issues with her.  That happens.

But aside from selecting a mediator that you think would be substantively/legally helpful, serious thought should go into selecting a mediator whose style and personality would be appealing to your client as well as the other party, to assist the parties to move toward settlement.  I recently had a situation where we selected a second mediator after the matter made little to no progress with the first mediator.  The first mediator was grandfatherly, soft spoken, knowledgeable, impeccably credentialed and had substantial gravitas.  The soft touch was appealing to one of the parties but totally ineffective with the other.  The second mediator had similar if not greater credentials and gravitas in some ways (but not in others), but was much more direct and blunt – and jumped right into the deep water as opposed to letting the process go on hours or multiple sessions.  The party that gelled with the soft spoken mediator was totally turned off by the direct approach and the other party more receptive.  Perhaps with these too, given their very different personalities, there would be no one mediator who checked all of the boxes and could reach both of them.

The point is that you have to know your client and know your mediator and try to agree on one that will be helpful substantively and also be able to develop a relationship of trust with both parties so as to be able to facilitate resolution, if one is possible.

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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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