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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The issue of student loans was one of the issues addressed in the unreported (non-precedential) Appellate Division opinion in the case of M.F.W. v. G.O. decided today.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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Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to.  Are you curious about your husband’s whereabouts?  You could plant a GPS device on his car.  Do you want to know what your wife is saying to the kids?  There are many ways to go about recording those conversations.  Are you dying to know what your spouse is doing on that laptop, tablet, or smartphone of his/hers?  You could install spyware or other programs (I’ve even heard of some of them referred to as “spouseware”) to secretly find out.  Learning about your spouse’s or ex’s comings and goings, who they are living with, or what they are talking to the kids about can all be valuable information when there are custody issues, questions about whether your ex is cohabiting with someone else for purposes of termination or suspension of alimony, and many other legal issues.  It’s certainly tempting…

BUT DON’T DO IT.  At least not without talking to an attorney.  Because even though technology gives you the ability to do this, it doesn’t make it right and it doesn’t make it legal.

I am seeing these issues come up more and more in my practice, and while much is unclear about where the boundaries can and should be drawn because of the fact sensitive nature of the use of technology in family law cases, a few things appear clear to me.  Using technology to track your spouse or significant other leaves you open to a claim of stalking under the New Jersey Prevention of Domestic Violence Act.  When you use technology to record parties to a conversation without their consent, you may also be subject to criminal and civil liability under Federal and State wiretapping laws – in New Jersey, this is known as the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A.  This is not to mention other civil claims such as invasion of privacy.

This is why it is critical that, before you take any step to use technology to surveil your spouse, you speak with an attorney to ensure that you are not doing anything that may subject you to civil or criminal liability, or to discuss alternative options that will allow you to surveil your spouse or family member without taking this risk.  When you are dealing with a criminal charge of stalking, the “But the private investigator I consulted with said it was okay” defense is no defense at all.  While private investigators know all about technology that can be used to surveil your spouse or other family member, they are not always thinking about or even aware of the legal ramifications of their advice.

And, importantly, once the proverbial cat is out of the bag and your spouse or other family member learns that they were being spied on, you cannot try to cover your tracks by destroying the evidence – this is known as “spoliation” of evidence and if you do it, you will likely be subject to sanctions and/or adverse inferences drawn by the Court.  In other words, the Court will punish you for destroying evidence, and may assume that you did engage in the illegal use of technology by virtue of the fact that you felt the need to destroy the evidence of your conduct.  Just ask the Plaintiff in the recent case out of New York State, Crocker C. v. Anne R., in which the Plaintiff installed spyware on his wife’s electronic devices to monitor all of her communications and listen in on her conversations with third parties including privileged communications with her attorneys and her psychiatrist.  When the Defendant discovered this, the Plaintiff immediately “wiped” all trace of the spyware from these devices so that it was not possible to determine the extent to which he intercepted her communications.  He was sanctioned and found in contempt.

And if you find yourself on the receiving end of being spied on by your spouse or family member, it is critical to obtain the immediate services of a forensic expert who can examine any device being used to record or surveil you and can take steps to preserve any such device for evidence purposes.

Remember:  In many ways, the legal uses of technology – especially in the context of family law issues – is a bit like the Wild West.  We are still trying to figure out the rules and the exceptions to those rules when it comes to the legal issues that arise in family law disputes, and it is always best to consult with an attorney before taking action.

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.

You never know when or where the next video camera or recording device  is going to show up. And when you’re in the middle of a contested divorce, particularly if there are custody issues, caution is key. I was reminded of this recently when a local news channel reported on complaints against Amazon delivery drivers who had thrown packages at  customers’ doors. The drivers had been caught because the homeowners had set up video cameras to monitor anyone coming up to the front door.

Camera lens/blue eye illustration isolated on white background.A 2 minute Internet search provides countless options for a shopper who is looking to set up some type of surveillance on practically anyone. Hidden cameras (and not so hidden cameras), GPS devices  and sound recorders have come a long way. The reality is that any litigant has to assume that the person on the other side of a matter is going to use any and all available methods to win their case.

Some real time examples:  a case in which a recovering alcoholic looking to regain custody of her son was video photographed in a bar with a glass of wine; a father looking for shared custody certified in court documents that his live-in girlfriend was not a smoker just to have his soon-to-be ex-wife provide the court with pictures of his girlfriend is smoking (which had been taken from his Facebook page). In another example, a client receiving alimony was captured with a live-in boyfriend based upon a small camera that had been placed on the telephone pole across the street from her house. A “friend” of a woman seeking alimony taped a phone call in which the woman admitted she had a secret stash of thousands of dollars.  All of these images or recordings were admissible in court proceedings and were used against the litigants.

When involved in litigation, particularly in family type situations, the sad reality is that people have to assume that they are being photographed or recorded practically at all times. This is time to be the best version of yourself and as hard as it may be, refrain from doing and saying things that can hurt your position.  Even if you are you are speaking or with a confidant.

That being said, the reality is that people do and say things that in retrospect they wish they hadn’t. When this happens, immediately advise your attorneys so damage control can commence.  Better you have control of the situation, no matter how bad.

 

 

MillnerJennifer_twitterJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

 

In 2015, I wrote a post on this blog with the same title because seemingly, this issue has been resolved for some time.  All too often, parties would agree to mediate their disputes but would try to reserve a right to appeal, as of right, to the Appellate Division, as if the matter was tried by the family court.  Since the Hogoboom case in 2007, lawyers have should have known that this was a no-no.  In fact, in Hogoboom, the Appellate Division specifically held that:

“…Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. [They] can be corrected or modified only for very specifically defined mistakes as set forth in [N.J.S.A. 2A:24-9]. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award. For those who think the parties are entitled to a greater share of justice, and that such justice exists only in the care of the court, I would hold that the parties are free to expand the scope of judicial review by providing for such expansion in their contract; that they may, for example, specifically provide that the arbitrators shall render their decision only in conformance with New Jersey law, and that such awards may be reversed either for mere errors of New Jersey law, substantial errors, or gross errors of New Jersey law and define therein what they mean by that.” … Here, the parties afforded themselves an expanded scope of review, as they were, by contract and by statute, permitted to do. The parties were not, however, entitled to create an avenue of direct appeal to this court. .. It is settled that consent of the parties does not create appellate jurisdiction.  … In our judgment, the parties must seek initial review of these awards in the trial court. The trial court is charged with employing the standard of review the parties contractually agreed upon in determining whether these awards, or either of them, should be vacated or modified. …

That seems clear enough, yet today, there was a reported (precedential) decision in Curran v. Curran that addressed this issue again.  In Curran, the parties agreed to arbitrate and entered into arbitration agreement which contained the very limited right to vacate an arbitration award per the New Jersey Arbitration Act.  However, the wife’s attorney wrote in the following sentence, “The parties reserve their rights to appeal the arbitrator’s award to the appellate division as if the matter was determined by the trial court.”  I guess they forgot about Hogoboom. If that was not bad enough, the parties signed the arbitrator’s retainer acknowledging that they were bound by the decision, except for the limited reasons under the act, and further, that they gave up their right of appeal.

After the arbitration, the husband filed a motion in court to vacate the award.  In refusing to vacate the award, the trial judge found the hand written addition preserving the right to appeal was unenforceable stating:

… that there was no provision under the Act to permit a direct appeal from an arbitrator’s decision to the Appellate Division. In addressing paragraph 3A, the judge stated: “The parties are not permitted to create subject matter jurisdiction by agreement which I think they tried to do here. The authority of a court to hear and determine certain classes of cases rests solely with the Constitution and the Legislature.” He concluded that paragraph 3A was unenforceable.

The trial judge did give a greater analysis of the matter than just permitted under the Act finding that that is what the parties had bargained for, and acted as “an Appellate Division of the arbitrator”  The Husband appealed asserting for the first time that the hand written addition preserving the right to appeal was illegal and voided the entire arbitration agreement and subsequent proceedings.

The Appellate Division disagreed and held that the unenforceable provision could be severed from the agreement.  The court held:

The primary purpose of the agreement was the resolution of the issues incident to the parties’ divorce through binding arbitration pursuant to the Act. This is evident from the contractual language stating: “The Parties having determined

that such issues be referred to binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq. . . . The parties shall attend binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq.” The parties attached an inclusive list to the agreement of all of the issues they intended the arbitrator to consider and resolve. The purpose of the agreement was for a final resolution of those issues. The arbitration agreement noted in multiple provisions that it was binding and not appealable, other than the limited grounds specified under the Act to modify or vacate an award.

Paragraph 3A did not defeat the parties’ intent to have their matrimonial litigation determined and considered by an arbitrator in an expeditious and comprehensive manner. After reviewing the parties’ submissions, the arbitrator rendered a preliminary award. Oral argument was heard on Robert’s application for reconsideration of the award. The arbitrator subsequently issued comprehensive findings of fact and conclusions of law, and a detailed final award. …

Severance of paragraph 3A does not defeat the primary purpose of the agreement. To the contrary, a revocation of the final award would only serve to frustrate the parties’ intent of reaching a final resolution to their matrimonial litigation and defeat the purpose of the arbitration agreement. The agreement is valid and enforceable.

As I noted in 2015, you can arbitrate and preserve a right of appeal.  Just like you can agree to arbitrate the initial determination of the issues, you can also agree to an appellate arbitration, as well.  I have had matters where our initial arbitration agreement called for the use of a panel of two retired appellate division judges (didn’t have to be – could have been anyone we agreed to be the appellate arbitrators), who would then decide the matter as if they were sitting as a regular appellate panel.  While in that case, you essentially lose the chance to appeal to the Supreme Court, you still have a body to review the matter if you think that the arbitrator got it wrong in the first case. The take away, however, is that your arbitration agreement must clearly spell out the scope of review and who will review the matter – taking into consideration what the court system can and cannot do with regard to an arbitration award.

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

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

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

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

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

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

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

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

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

The word “harassment” is one of those terms I hear all the time as a family law attorney.  I have had complaints from clients that their spouse made a mess of the house just to “harass” them.  Or, I have had adversaries who intentionally misconstrue every single dispute between our clients as “harassment.”  It is just one of those hot-button words that everyone likes to use so much, that there are times when I wonder whether it has lost all meaning with judges and other family lawyers.

Merriam-Webster defines the word “harassment” as follows:

  1.  a: Exhaust; fatigue; b: 1) to annoy persistently; 2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.
  2. to worry and impede by repeated raids.

And maybe making a mess around the house in order to drive your wife crazy or picking fights about what to feed the children, who last filled the car up with gas, or who is responsible for paying the nanny this week is harassment as Merriam-Webster defines it.

But when we start bandying about this word to one another before the Court and in the context of family law litigation, there is a legal definition that applies and that we should all be mindful of before labeling what is simply domestic contretemps as legally actionable harassment.

A person commits the criminal act of Harassment when:

[. . .] with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.

Thus, to be legally actionable, the “harassment” must meet the above criteria. In the recent matter of State v. Burkert, the New Jersey Supreme Court addressed subpart (c) of this definition of harassment. The Court in Burkert found that – where the alleged harassment is based on purely expressive activity – a liberal reading of subpart (c) may run afoul of the First Amendment right to freedom of speech, which guarantees protection of speech even if it is offensive in nature.

In Burkert, the “purely expressive activity” had to do with the Defendant super-imposing some very, uh, colorful, language on a photograph of his co-worker’s wife and circulating it at work.  There was no question this act was committed “with purpose to alarm or seriously annoy” Burkert’s co-worker.  At the same time, to find Burkert guilty of harassment for engaging in this speech would run afoul of his First Amendment Protections.  No matter how offensive speech may be, it is generally protected barring a risk to one’s reasonable expectation of privacy or safety.

In order to reconcile First Amendment Protections with subpart (c) of the statute, then, the Court held the following:

Therefore, for constitutional reasons, we will construe the terms ‘any other course of alarming conduct’ and ‘acts with purpose to alarm or seriously annoy’ as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

While State v. Burkert is a criminal case, it is important for all family law practitioners and any individual considering obtaining a domestic violence restraining order based on harassment to take heed of Burkert.  In cases where a restraining order is sought based on allegations of harassment, the plaintiff must prove that harassment has occurred as defined by the above statute.  Therefore, the Court’s narrow construing of subpart (a) of the statute is critically important to those seeking the protections of a domestic violence restraining order based on harassment.

Practically speaking, then, what does this ruling change?  Well, it ensures that speech alone cannot be the basis of a harassment crime or of a domestic violence alone.  For example, if your spouse called you by an expletive instead of by your name 100 times in a 48 hour period, it might fit the Merriam-Webster definition of harassment, but it won’t fit the new definition of harassment under subpart (c), unless combined with harassing conduct and / or speech that reasonably makes you fearful for your life, or intolerably interferes with your reasonable expectation of privacy.

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.

For many divorce attorneys, the busy season starts after the first of the year. For the last several years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Before writing this article for the first time, out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. There are even more results when you do the same search now. While not all of the search results are on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. In some recent years, the calls started in November at a pace more robust than in prior years. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

As noted in my blog post from last week, the reforms to the tax code may be the impetus for people on the fence to divorce in 2018 to take advantage of the last year of the deductibility of alimony.

Whatever the reason, we await those who see 2018 as a chance for happiness or a fresh start. Happy New Year?!?!

For me, my resolution will be to blog more in 2018.

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.

Since the first go round of the proposed massive revisions to the tax code were announced several weeks ago, matrimonial lawyers, litigants, accountants, etc. have been in a veritable tizzy over the prospect that one of the modifications was to eliminate the deductibility of alimony payments by the payer and the includability of the payments by the recipient as income, for all agreements or judgments after December 31, 2017.  The angst was with good cause because that provision of the tax code allowed the payer to pay more alimony to the recipient because he did not have to pay taxes on the income used to pay alimony, therefore, creating greater net after tax cash flow for him/her.  On the recipient side, because she/he often paid taxes at a lower rate, it made sense all the way around, except maybe to Uncle Sam who was losing the higher tax revenue by the shifting of income from the higher taxed payer to the lower taxed recipient.

When the Senate version of the tax reform bill was announced, this issue was not addressed at all, causing some hope, albeit short lived because the bill that came out of the reconciliation process had the elimination of the deduction, but not at the end of 2017, but rather, the end of 2018.  This was explained yesterday in a blog posted by my partner, Mark Ashton, of our Chester County, Pennsylvania Office, on our Pennsylvania Family Law Blog, entitled Alimony About to Experience an Untimely Death.  The House just voted to pass the tax bill and the Senate is not far behind.

The bottom line is that the new tax laws will provide less to go around for both sides of the equation. Old “rules of thumb” will go out the window.  Child support guidelines will have to be adjusted as they are based upon combined net income.  Because combined net income will be less, especially in places like New Jersey that are hit hard by the new laws eliminating some of the property tax and other deductions, will child support go down too?  Will this lead to a race to the courthouse in 2019 to adjust child support because whether or not you are able to deduct alimony, will tax increases be considered a change of circumstances?

I would think that savvy people who are contemplating divorce might see the change in the law as a catalyst to finally pull the plug on a marriage to take advantage of the tax benefits of alimony in their final year.  People embroiled in an ongoing divorce may finally agree on something, i.e. to get the divorce over with before the end of 2018 for the same reason.  Only time will tell whether the unintended consequence of the so called tax reform will cause 2018 to be the Year of the Divorce. Either way, we are all going to have to get used to this paradigm shift in figuring out what a fair alimony amount should be given the change in the law.

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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