Property Settlement Agreements

In the recent unpublished (non-precedential) decision of Mathurin v. Matrhurin, the Appellate Division again confirmed that (1) agreements reached in mediation are not binding unless the terms are reduced to a  writing signed by the parties and, ostensibly, their attorneys if present, and (2) absent such a writing, the court cannot consider discussions, unsigned agreements or memoranda from mediation or other settlement negotiations because such writings/discussions are confidential by virtue of the Rules of Evidence that provide privilege to settlement negotiations.  It therefore follows that such confidential writings and/or oral communications cannot be relied upon to convince a court that an agreement was reached in mediation.

The post-divorce litigation in Mathurin arose when Plaintiff/ex-husband filed a motion to enforce the Marital Settlement Agreement (“MSA”) in order to compel Defendant/ex-wife to accept the offer for sale of the marital residence.  The parties agreed to sell the home within the MSA, but after they received this offer, Defendant proposed to buyout Plaintiff’s interest in the home for the same amount.  Plaintiff did not accept this alternative resolution.  Two other enforcement applications followed – one dismissed for procedural issues and the other denied without prejudice (meaning it can be refiled) pending the parties attending mediation because the MSA had a mediation clause that requires the parties to seek such intervention before filing an application with the Court.  The mediation session that followed gave rise to this appeal.

The mediator prepared and signed a Memorandum of Understanding (MOU) listing the terms reached in mediation and further stating the parties’ agreement that the MOU reflects an enforceable settlement reached between the parties.  Plaintiff reneged on the terms in the MOU because of credits sought by Defendant that he found objectionable, and he refused to sign a formal agreement that his attorney prepared incorporating the terms of the MOU.  Plaintiff fired his attorney and filed another motion to enforce the MSA.  Defendant filed a cross application to enforce the MOU to which she attached the MOU and signed certifications from herself and both parties’ counsel wherein those parties disclosed the contents of mediation. Ultimately, the trial court found that it cannot consider the MOU and/or the certifications because they are confidential settlement documents, and that the MOU was not binding.  The Appellate Division affirmed, finding that the MOU and certifications represent confidential settlement material and that the MOU is not binding because it was not signed by the parties or counsel.

The Appellate Division cited to a New Jersey Supreme Court case, Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 245 (2013), confirming that the all agreements reached in mediation must be reduced to a signed written agreement and that mediation discussions cannot be relied upon to prove an agreement was reached unless the parties waive the mediation privilege.  The Appellate Division differentiated this case from a 2017 decision, GMAC Mortg., LLC v. Willoughby, 230 N.J. 172 (2017), because in that case the writing was signed by the parties’ attorneys.  Although those cases are not family law matters, the same principals apply to all settlement discussions.

This issue here is one that attorneys and litigants face in mediation all to often – was an agreement reached just because there seemed to have been a meeting of the minds?  The simple answer is no.  Although we do not suggest, nor would we propose, rushing into signing an agreement, if a party in mediation wishes to make sure that the agreement reached in the session is binding, then the terms must be in writing and signed by both parties, as well as counsel if present.  This does not have to be formal – a piece of paper with handwritten terms will suffice – but there is no question that written terms and signatures are required.  At minimum, terms can be memorialized in an MOU but as we all now know, the MOU is not binding.  What may result then is a Harrington hearing, which you can read about in this post: https://njfamilylaw.foxrothschild.com/2014/03/articles/mediation-arbitration/harrington-is-still-alive/

Oftentimes in mediation, the mediator explains at the outset that nothing reached in their session will represent a final agreement unless the terms are reduced to writing and signed by those present (i.e.: parties/parties and counsel).  This is a common instruction, presumably in an effort to avoid a future Harrington situation, and one that I find beneficial so that everyone in the room is starting out on the same proverbial page.

The takeaway – it’s not over until it’s signed, sealed and delivered!


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

In the wake of the September 10, 2014 amendments to N.J.S.A. 2A:34-23, the legislature clarified the circumstances under which an alimony payor’s obligation can be modified or terminated due to the obligor’s intended or actual retirement.  Under the statute as amended, when faced with an obligor’s application to modify or terminate alimony due to good faith retirement, the Court must consider the question of the alimony recipient’s ability to save for his or her own retirement.  As discussed In the new unpublished (non-precedential) Appellate Division decision Stansbury v. Stansbury, this question is given much greater weight in pre-Amendment cases (i.e. in cases that were decided or agreements that were entered into prior to September 10, 2014).

For post-Amendment cases, there is a rebuttable presumption that if a payor retires at “good faith retirement age” (defined as the age at which (s)he would be entitled to receive full Social Security Retirement benefits), then alimony shall terminate unless the recipient can show by a preponderance of the evidence and for good cause shown that alimony should continue (either in full or in a reduced amount).  In making that determination, the court must consider eleven (11) factors, one of which is the ability of the recipient to have saved adequately for retirement.  See N.J.S.A. 2A:34-23(j)(1).  This factor is listed along with the ten other factors, in no order of importance, with no emphasis whatsoever.

But for pre-Amendment alimony awards (like the Stansburys’), the statute does not just list the obligee’s ability to save for retirement as one of many on a list of factors to be balanced and considered.  Instead, it absolutely mandates and even elevates this criteria first and foremost among the others:

When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age.  Upon application by the obligor to terminate or modify alimony, both the obligor’s application to the court and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.  In making its decision, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:

(a)  The age and health of the parties at the time of the application;

(b)  The obligor’s field of employment and the generally accepted age of retirement for those in that field;

(c)  The age at which the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d)  The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

(e)  The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f)  The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part time or work reduced hours;

(g)  The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

(f)  Any other relevant factors affecting the parties’ respective financial positions.

N.J.S.A. 2A:34-23(j)(3) (emphasis added).

In Stansbury, the Defendant had a permanent alimony obligation but, at the age of 72 (well past good faith retirement age), he was looking to retire and made the appropriate application, which the Plaintiff opposed.  Eliciting certain facts from the parties’ respective certifications that accompanied their motions (and, reasonably, hoping to avoid the time and expense of a trial for two litigants with modest means and of a senior age), the judge addressed each of the factors listed above, including the question of the Plaintiff’s ability to save for retirement.  She found that – based on what the Plaintiff certified about a recent health issue and about her income and budget set forth on her Case Information Statement – it was “unlikely” that the Plaintiff had been able to save for retirement.  Based on this assumption and on the remaining factors, the trial judge declined to terminate the Defendant’s obligation and instead reduced it.

The Defendant appealed, arguing that – having failed to conduct a hearing – the trial judge did not have sufficient evidence to make the assumption that the Plaintiff did not have the ability to save for retirement.  In fact, on the question of what had happened to the Plaintiff’s share of Defendant’s pension awarded to her in equitable distribution, the trial judge had essentially taken a guess that the Plaintiff had liquidated her share of that marital asset and spent it while she was not working due to her recent illness, or else re-invested it.  There was no testimony in the record from the Plaintiff herself as to what she had done with this money.  The Appellate Division found that the trial judge’s failure to make findings after a hearing as to the issue of the Plaintiff’s ability to save for retirement was an error, and remanded the matter to the trial court, instructing that:

The hearing should require plaintiff to come forward with evidence that she saved for retirement to the extent she was able to do so, and how plaintiff disposed of her share of defendant’s pension.

The case makes clear that for pre-Amendment alimony awards in particular, trial judges not only have to consider this factor, but must give it great weight.   Therefore, litigants opposing retirement applications in pre-Amendment cases should be prepared to address this in great detail.   Additionally, the Appellate Division’s instruction to the trial court quoted above in the Stansbury case certainly suggests that whether an obligee has actually saved for retirement is not the important thing that courts must consider in these applications, but rather whether the recipient COULD HAVE saved for retirement based on his/her income, assets inclusive of equitable distribution, and the alimony received.  In other words, fiscal irresponsibility on the part of the obligee shouldn’t bar the obligor from making a successful application.


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

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

Here’s what it can be like:

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

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

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

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

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

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

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

 

 

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

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

A judge’s favorite line when custody is an issue is some variation of the following: No one is better equipped to make decisions about your children than their two parents, and certainly not the judge who does not know your family from the next family in line.  They are not wrong, and they will do whatever they can to have parents even in the most acrimonious of cases resolve custody issues to avoid tens of thousands of dollars, and months upon months, on custody evaluations and a custody trial.  Of course this is not always possible, but the requirements for alternative dispute resolution start almost at day one after filing the divorce complaint.

Whether you are married and commencing the divorce process (dissolution docket), share a child in common but have never been married, or are simply seeking to enter a custody arrangement but not get divorced (non-dissolution docket), the Court Rules require that parents attend Custody and Parenting Time Mediation at the outset of litigation.  This is a free session held at the courthouse, without attorneys present, during which a courthouse mediator assists parents in reaching an agreed upon custody arrangement and parenting time schedule.  If successful, the mediator will draft an order for review.  Even when the court is not involved, counsel will often attempt to resolve custody and parenting time issues prior to finances. This prioritization is designed to ensure that your children are not stuck wondering which parent they will be with at what time, and the parents are not incentivized to get a child on his/her side.  The schedule also helps the parents understand what free time they have and/or how they may be able to manage their work schedule.

The agreement, order or judgment fixing custody and parenting time is generally the most important document entered in your matter – it provides guidelines to live by for years until the emancipation of your children, absent any substantial change in circumstances along the way.  Given its importance, the agreement, order or judgment should hit all the points that are essential to you… this can save you future head and heartaches for having to return to court or other forms of dispute resolution over aspects that may be missed.   They say that when an agreement is reached, each party will be a little happy and a little sad – that’s the nature of compromise – but the feeling you want to avoid is “oops… forgot about that” (especially when you do not have a co-parent who will readily amend the agreement)!

When our clients are preparing to resolve custody, whether in private or court ordered mediation, we prepare them with a Custody and Parenting Time Plan – essentially their wish lists.  This plan is designed to remind clients what they want to address, rather than have a cookie cutter agreement or order prepared.  Some courts require the submission of this plan prior to the mandatory mediation session, but not all do.

Whether you are attempting to resolve these issues in the above-described mediation session, or simply with your co-parent via discussion, with attorneys, in private mediation, etc., or even as part of a global divorce resolution, here is a checklist that we recommend you review before creating your wish list:

  • Legal custody with time periods for joint decisions. Legal custody is decision making authority about your child(ren)’s education, health, safety and general welfare.  In most cases, this is a joint decision making authority.  Consider including the requirement to discuss such issues with each other and even a time period by which the parents have to advise each other of new developments, and when responses are due for certain requests, i.e.: making a medical appointment or enrollment in a desired activity.  The sharing of such expenses are generally dealt with in the final divorce agreement or judgment.  Always consider adding into the agreement requirements for mutual respect, cooperation with facilitating the schedule and the child(ren)’s love for the other parent, and restraints on involving your child(ren) in the litigation.
  • Commencement date for the parenting time schedule selected. Here, consider being clear as to the commencement date depending on the case.  If the schedule is, for example, alternating weekends and then each parent has two days during the week, consider not just adding the date of the first weekend.  This can lead to confusion as to when the weekdays start if the agreement is reached mid-week.  If you are silent on when the schedule commences, then the default will be the date of the agreement.
  • Location for pick up and drop off. This will also help define who does the driving – an important issue in recent a blog post by Sandra C. Fava, Esq., just last week.  More and more we are seeing and creating schedules with pick up and drop off at the child’s school, camp and/or extracurricular activity.  This will not always be the case as some alternating weekend schedules end on Sunday instead of Monday, some parents do not have any weeknight overnights, etc.  This leads to the next point…
  • …Alternate location when the initial location is not available. For example, if pick up is at school, camp and/or extracurricular activity, build in the location for when such events are not in session.
  • Time for pick up and drop off… In some cases, consider being specific on what time the other parent is expected to arrive and/or drop off your child(ren). You can even build in a provision about being late if you are dealing with a co-parent who often is, such as a required text message when either parent is going to be more than X minutes late.
  • You guessed it – add in the alternate time if the event is not in session (i.e.: pick up after school or 3 p.m. when school is not in session). Seems simple but the alternates are easy to forget and can lead to stressful situations!
  • Driving to activities and appointments. Consider including a provision indicating that the parent exercising parenting time is required to drive the child(ren) to/from any and all activities and appointments held during such time.  It doesn’t hurt to consider including that each parent can attend such appointments and activities regardless of the parenting time schedule.  This may differ in certain circumstances and acrimony level.  You can even build in who sits on home/away bleachers.
  • Right of first refusal, meaning when the parent scheduled to exercise parenting time is not available for a defined period (i.e.: certain number of hours or overnight), then the other parent has the “first right” to have that time with their child. A third party cannot be contacted to “babysit” unless the other parent does not elect to use such right to the time.  Here, consider building in time periods required for the parent to offer this right, and the other parent to respond.
  • Holiday schedule. Sometimes this schedule will be an addendum added at a later date if you cannot agree at the time that you agree upon the regular schedule.  However, if you can make the first agreement all-inclusive, you will not have to revisit the issue.  You want to include the location and times for pick up and drop off here, as well.
  • Defined amount of vacation parenting time. The amount of time usually depends upon the child(ren)’s age(s), but also consider including whether the weeks can be consecutive.  Other options include adding a time period under which you have to provide notice to the other parent of your desired weeks for vacation time, priority on who selects the time first each year, language regarding taking the children out of the state or country, passport-related cooperation, and even whether vacation has to even include one parent traveling for it to actually be considered vacation parenting time.
  • Alternate arrangements when the schedule results in one parent having three consecutive weekends. Typically, holiday and vacation parenting time will trump regular parenting time, but it is something to discuss if it is what you want.  If it’s on your wish list, include a provision indicating that neither parent shall have three consecutive weekends and, if the holiday/vacation time would result in such a schedule, then the first or last weekend of the block will be switched so that each parent has two weekends in a row.  This avoids having to “re-alternate” weekends thereafter.
  • Amount of contact that each parent has with the child(ren) when the other parent is exercising parenting time (i.e.: telephone, Skype, FaceTime, etc.). Depending upon your child(ren)’s age, this may just be reasonable time as desired.   However, if you are concerned about having your time usurped by the other parent continually contacting your child(ren) during your time, you may want to include a once or twice per day allotment.  If your child is too young to use the device alone and you need to coordinate the contact, then you should consider building in a time, such as morning and evening if that works for everyone’s schedule… Again, build in what happens when the agreed upon time is unavailable on a given day.
  • Radius clause. This can be a tricky one. Custody and parenting time in New Jersey is always modifiable because it is based upon the best interests of your children and that may differ over time with a substantial change in circumstances.   Often, these schedules are reached when everyone is still local to each other or even under the same roof, but that may not always be the case.  It’s important to consider how moving a certain distance away from the other parent may impact your child(ren)’s best interests. In other words, how far is too far?  That’s a personal question, considering many factors, including the age of the child(ren) and frequency of parenting time transfers.  For example, if you share equal parenting time with pick up and drop off at school, then what is the maximum commute your child(ren) should have on a school day?  How will this impact activities after school or even a job?

In the recent unpublished decision of B.G. v. E.G., the Appellate Division vacated a provision within the trial court’s Order requiring the parents to live within fifteen miles of each other.  The case was unique case in that one parent was designated as the parent of primary residence (“PPR”) for two children and the other parent was designated as PPR for their third child.

The radius clause was entered following a divorce trial during which a custody expert testified that the parties should live within thirty minutes of each other because “it would be ‘optimal if the children did not change their friends, their locations, their habits.’”  Pursuant to the decision, the court also considered their children’s testimony,  daily exposure to both parents and extensive time the parents spent with their children.  In vacating the radius clause, the Appellate Division opined that the geographic location was not supported by substantial credible evidence.  Specifically, it was based only on the expert’s subjective opinion – no testimony was offered about geographic location, there was no finding that such limitation was in the children’s best interests, and other methods of maintaining contact were not explored.  Notably, the Appellate Division specifically opined that a radius clause did not restrict the objecting parent’s “right to travel” by way of a constitutional law argument.  Given that the objecting parent did not present other constitutional arguments, the Appellate Division did not further delve into the constitutionality of the radius clause.

Thus, the decision infers that although the radius clause here was not supported by enough evidence presented at trial, a radius clause in another matter can be upheld as constitutionally valid if the constitutional argument presented is a restriction on the right to travel.  However, perhaps another constitutional argument may prevail.  I would not be surprised if this issue arises again with more and more shared parenting time arrangements that require a closer geographic proximity… keep an eye out!

So, what is the takeaway?  Keep this checklist for your wish list… from decision making authority to the location that works best for the schedule, there is a lot to think about.  It is natural to forget a few things when you are in a mediation session, having a conversation or even preparing for litigation.  Make your wish list.  Save your wish list.  Craft your wish list to fit your family if the cookie cutter case is not for you.  After all, you are creating this guideline to save yourself time, money and stress in the future… why not ask for what you want?


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

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

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

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

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

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

Demonstrating yet again that cohabitation cases are almost always a creature of their specific facts and circumstances, the Appellate Division in the recently unpublished, Salvatore v. Salvatore, reversed a trial court’s decision denying a payor former husband’s motion to terminate his alimony obligation based on his payee former wife’s cohabitation in a manner defined by the parties’ Marital Settlement Agreement (MSA).

Here are the facts that you need to know:

  • The parties entered into a settlement agreement and were divorced in early 2011.
  • As to alimony, the agreement provided that the payer’s alimony obligation would terminate upon payee’s remarriage, payer’s 66th birthday, or either party’s death.  As to cohabitation, the agreement provided that payee’s “cohabitation with an unrelated adult in a relationship tantamount to marriage [would] be a re-evaluation event”.
  • In an outright rarity in cohabitation matters, which often involve payee spouses concealing the cohabitation from the payor spouse so as to preserve the support obligation, here the payee advised the payor of her planned cohabitation.
  • Even more rare is that the parties then entered into an addendum to the MSA, wherein: (1) they agreed to the cohabitation; (2) recognized they were “without sufficient knowledge to determine whether the cohabitation [would] be temporary or permanent”; (3) reduced monthly alimony payments by $850 “during the period of cohabitation”; and (4) provided that, “[b]ecause the [p]arties cannot determine the permanency of the cohabitation,” alimony would be reinstated “at the full amount in the [MSA] . . . for the remainder of the term” if the cohabitation terminated.
  • Approximately six years later, the payor filed a motion to terminate his alimony based on the payee’s continued cohabitation.  The trial judge denied the motion, finding that the cohabitation was admitted to at the time of the addendum and, as a result, its continued existence – in and of itself – was not a change in circumstances.  Payor appealed.

Reversing the trial court, the Appellate Division held that the trial judge:

  1. “misapprehended that the change of circumstances involved only defendant’s cohabitation, failing to consider the terms of the MSA that provided cohabitation ‘in a relationship tantamount to marriage’ triggered the ‘re-evaluation event.'”
  2. erred in considering the payer’s failure to allege a financial change in circumstance.
  3. held that financial changes were “of no moment” when considering the MSA language at issue.

In so doing, the Appellate Court reiterated seminal pre-2014 statute case law mandating that the “economic needs” of the payee spouse need not be considered so long as the cohabitation provision meriting an alimony modification is fair.

Addressing the subject addendum to the MSA – really the unique feature of this particular cohabitation case – the Appellate Division found that the trial court:

  1. ignored the cohabitation provision of the MSA by finding that the addendum was the very “re-evaluation” called for by the settlement agreement;
  2. in so doing, relegated the addendum as the benchmark event from which a change in circumstance would have to occur to merit further relief for the payor.  In other words, it was in error for the trial court to find that the payee’s ongoing cohabitation was not a change in circumstance simply because the cohabitation was initially acknowledged by the parties six (6) years earlier in the executed addendum to the MSA.  Specifically, “the trial judge ignored the agreement – and the Konzelman Court’s definition – that more than a casual, perhaps temporary, cohabitation was needed to precipitate a review of the plaintiff’s alimony obligations.”
  3. the cohabitation here was neither short-term, nor temporary.
  4. there was no indication in the executed addendum that it in any way superseded the cohabitation provision of the MSA.

As a result, the matter was remanded to the trial court for a period of discovery and ultimate plenary hearing on the payor’s motion to terminate alimony.  While not shedding further light on the 2014 cohabitation statute (since this matter applied pre-statute case law), the unique factual scenario at issue only further highlights how cohabitation matters are often unpredictable, and rise and fall on the case-specific circumstances at issue.

 

 

Amicably settling your divorce matter is almost always better than taking your chances at a trial before a trial judge who knows almost nothing about your life. Not only can settling save you substantial time and expense as compared to continued litigation, but also it provides you with the opportunity to end the case on your terms while removing the risk associated with an uncertain trial decision.

Spiderman in Lego formTo that end, settling also means potentially agreeing to terms that are not necessarily what the law may provide. As Uncle Ben once said to a young Peter Parker, “with great power comes great responsibility.”  It is critical that you are not only entering into your agreement voluntarily, but also that you actually know what you are agreeing to.  Sounds simple enough, but litigation oftentimes follows when disputes as to the terms of an agreement arise.  This was the situation in T.L.H. v. M.H., wherein the parties’ definition of cohabitation as an alimony-modification event was more expansive than that provided by law. Specifically, the subject settlement agreement there provided that alimony would terminate:

[U]pon the death of either party, or the marriage or cohabitation of [plaintiff]. The term “cohabitation[,”] in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends.

Solidifying the parties’ respective understanding as to the terms of the agreement, it also provided therein:

In arriving at this agreement both [plaintiff] and [defendant] had an opportunity to obtain the assistance of separate legal counsel and to be advised regarding the legal and practical effects of this [a]greement. . . . The parties have read this agreement in its entirety and each of them has entered voluntarily into this agreement. They have consented to and assume all of the covenants herein contained, having read the same and having fully understood them. They both acknowledge that it is a fair, just and reasonable agreement and [is] not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person and that there have been no representations, warranties, covenants, or undertaking other than those as set forth herein.

Post-divorce, the wife moved in with her sister after she was forced out of the former marital home due to a sheriff’s sale. The husband, as a result, stopped paying alimony, which caused the wife to file a motion to enforce the agreement. In response, the husband moved to terminate alimony based on the wife’s cohabitation as defined by the parties’ agreement.

While not necessarily relevant to addressing the unambiguous language of the agreement, the husband argued that he negotiated the cohabitation provision because he knew the wife would ultimately move out of the former marital home and in with family. The wife argued that she negotiated a higher level of alimony because she knew her expenses would increase after she left the home. At the core of the wife’s argument was her position that living with someone is different than cohabitation. Specifically, she argued her understanding that cohabitation meant someone else was, at least to a significant extent, “supporting” her.

Relying on the language of the parties’ agreement, and both public policy and case law supporting the reaching and enforcement of private agreements, the trial court enforced the cohabitation provision and terminated alimony.

On appeal, the wife argued that: (1) a plenary hearing should have been held to address a genuine issue of fact regarding the parties’ intent in agreeing upon the cohabitation provision; (2) the trial court improperly failed to addressed existing economic circumstances at the time enforcement was sought. In affirming the trial court, the Appellate Division reiterated public policy favoring settlement and the enforcement of unambiguous language, while noting how a court cannot rewrite an agreement to provide for terms better than that bargained for by the parties. The Court also referenced cohabitation jurisprudence wherein the voluntarily agreed upon language of an agreement as to such issue can be subject to enforcement even when differing from that provided by law (as to what cohabitation is, the impact of cohabitation on alimony, and the like).

In so holding, the Court noted as to the facts at hand:

Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the MSA. The agreement was voluntary, knowing and consensual, and the alimony-termination event upon cohabitation was fair under the circumstances of the case. We agree with the court’s finding that, while residing with her sister does not rise to the level of cohabitation under Konzelman, supra, plaintiff understood that residing with her sister was an event that could trigger termination of alimony under the description of cohabitation specified in her MSA. In our view, the explicit terms in the MSA obviated the need for a plenary hearing. Accordingly, we find no error in the court deciding the cross-motion on the papers.

The takeaway from this case is that while a litigant has great power to settle a case as the preferred approach over litigation, with great power comes great responsibility to know and understand that to which you have agreed.

 

Arbitration – essentially, a private trial in which the parties hire a fact-finder who serves in lieu of a judge – has become an increasingly common means of resolving family law disputes.  Although an arbitration may be conducted with all the formalities of a trial, usually parties can agree to dispense with certain formalities, some of which can be costly for the parties.  Arbitration takes a trial out of the sometimes messy court system, usually guarantees a decision will be made in a timely manner, and ensures that the trial does not become a matter of public record.  In family law matters where the issues can be sensitive and the testimony potentially embarrassing to the parties, this may be preferred by the parties.

Another advantage to arbitration is that the litigants are not beholden to the deadlines of the Court system.  They can move on with their lives and even get divorced, while agreeing to defer certain issues to arbitration on a more relaxed timelines.  But sometimes this can backfire.

In a recent unpublished (non-precedential) decision, Shah v. Shah, the Appellate Division addressed the question:  “What happens to an agreement to arbitrate when nobody arbitrates?”

The answer given by the Appellate Division is an interesting one, especially in light of the facts of the Shah case.  In a nutshell, here they are:

  • The Shahs entered into an agreement resolving at least some of their issues in January 2003.  As to those issues that were not resolved (and there were a whopping seventeen of them), they agreed that they would proceed to arbitration.  They agreed on an arbitrator, paid his retainer, and set a date for arbitration.  However, the arbitration did not go forward and after several years passed, Arbitrator # 1 returned the retainer.
  • In 2008, the parties mutually agreed upon a new arbitrator, Arbitrator # 2.  However, neither of them took any steps to retain him.
  • In 2009, Mr. Shah filed a motion to compel the arbitration, expand the scope of the arbitration beyond the seventeen issues identified in the parties’ agreement, and appoint a new arbitrator.  The Court granted Mr. Shah’s motion and appointed Arbitrator # 3.  The Court also entered a discovery schedule, and entered an order directing the parties as to the manner in which Arbitrator # 3’s retainer would be paid.  Despite Mrs. Shah’s apparent attempts to move forward with Arbitrator # 3, Mr. Shah did nothing.  Eventually, Arbitrator # 3 wrote to the Court to, understandably, advise that he would not arbitrate until his retainer agreement was signed.  Neither party signed it.
  • In 2015 (now twelve years after the parties agreed to arbitrate), Mr. Shah once again asked the Court to compel the arbitration, this time asking that Arbitrator # 2 be appointed.  Mrs. Shah cross-moved.  Among other things, she asked the Court to terminate the parties’ obligation to arbitrate.  The Court granted Mrs. Shah’s request, reasoning that – twelve years later – the parties were in very different financial circumstances and could not be made to arbitrate at this point.  The Court also opined that the parties had waived their rights to arbitrate.
  • Mr. Shah moved for reconsideration of the Court’s Order, which the Court denied.

That brings us to Mr. Shah’s appeal.  In pertinent part, Mr. Shah argued that the decision of the lower court should be reversed because the judge incorrectly concluded that the parties had waived their rights to arbitrate due, essentially, to the passage of time.

The Appellate Division agreed with the judge below and concluded that the parties had waived their rights to arbitrate.  This is an interesting conclusion in light of the definition of a waiver:

Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. [internal citations omitted].

Indeed, under the facts of the Shah case, there was no question that the parties had unduly delayed in proceeding to arbitration.  Mr. Shah apparently admitted to the Court that he was unhappy with Arbitrator # 3’s fee and therefore did nothing to move forward with the court-appointed arbitrator he had asked for in the first place.

At the same time, there were efforts over the years to move forward with the arbitration.  The major consideration the Appellate Division seems to have made was the amount of time that had passed, regardless of the fact that the parties had – at various points over that time period – made efforts to move forward with the arbitration.  One can imagine that this could be a closer call under even a slightly different set of facts.  For example, what if the facts were identical, but had occurred over the course of five years instead of twelve?

What is clear is that at some point, if parties do not arbitrate then the right to do so is waived, even if the parties have an agreement in place to proceed to arbitration, and one of them wants to enforce it.


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.