Fox Rothschild LLP

Lately, it seems that wherever you turn, well-known personalities, whether they be athletes or entertainers, are entering sexual rehabilitation The question arises as to whether extra-marital sex can be converted into dollars by the offended spouse, that is, is there some theory by which compensation might be grounded.

The answer in New Jersey, perhaps, can be found in the case of Mani v. Mani, 183 N.J. 70 (2005), written by the well-respected Justice Virginia Long — a justice of the New Jersey Supreme Court who had a wealth of experience both on the trial bench in handling matrimonial matters as well as on the Appellate Division before being elevated to the State’s highest court. In that case, the issue was simply whether marital fault could be considered a factor in awarding alimony. We start from the theoretical position that the statute on alimony identifies fault as a factor. (Note that that was a left over from the time before the Divorce Reform Act in 1971 when the only grounds for divorce were based on fault. Since then, of course, several no-fault grounds have been added to the point being that most cases are now granted under irreconcilable differences) The practical question is simply to what extent will courts utilize fault as a factor in contested cases?

From 1971 and up until Mani, courts were reluctant to become enmeshed in time consuming tit-for-tat testimony which would essentially have no effect upon the outcome in any event. That attitude was resoundingly continued in Mani that alimony is not fault t based, but instead, an economic right of support arising out of the marital relationship to the extent of the standard of living enjoyed during the marriage. It is only where marital fault affects the economic status quo of the parties can a trial court take such fault into financial consideration.Continue Reading Marital Fault: A Factor in Awarding Alimony?

As is widely known, the filing date of the complaint for divorce which actually leads to a divorce is the “cutoff date” for equitable distribution, that is, assets acquired up to that date are generally subject to equitable distribution, and assets acquired after that date are generally not. This is a general rule and cannot be taken as a total brightline test since there are no notable exceptions. Among these are: (1) assets acquired by way of gift or inheritance or intestate succession (death without a will) not from a spouse; (2) assets acquired with other assets which were either from a third party as in the first example of acquired by one party prior to the marriage. An exception to the cutoff date would be an asset acquired by one party after the cutoff date but with assets which were subject to equitable distribution. Again, these are general rules and there are always exceptions or other fact situations which render a general rule inapplicable. Obviously, it is best to consult qualified counsel since each circumstance is fact-sensitive, and the result usually turns on very specific development of the facts.

One exception to the timing of “cutoff date” rule is advantageous to the parties. Say that (for one reason or another) the parties are cooperative and want to attempt to negotiate an agreement before filing for divorce. Their hope is that they can amicable provide the other, through counsel, with sufficient documentary information upon which to adequately understand their financial circumstances and based on that understanding, negotiate an agreement, in which case, they can then file for divorce and obtain an uncontested termination of their marriage within a few weeks. Using this methodology, they can avoid certain judicial systemic entanglements.

 

 Continue Reading Agreement for Cutoff Date in Lieu of Filing for Divorce

As seen in Affluent Magazine.

Divorce for those of substantial wealth relative to those of limited wealth is an oxymoron – aspects of divorce between the two classifications are both similar and yet quite different. In final analysis, it is a question of degree – that is, the number of zeros behind the dollar signs. This summary discussion will deal with certain procedures and aspects of divorce which are similar to both. The distinctions lie in the availability and desirability of various procedural vehicles to the two groups.

Privacy and Confidentiality

Nearest to the hearts of you — the rich and famous (next to, of course, your money) — is privacy and confidentiality. None of you in your right mind wants to spread your dirty laundry in public – least of all those of you blessed with substantial wealth. With divorces of such persons being instant grist for media dissemination, generally, it is better for all concerned (especially their children on a whole host of levels) to have disposition of your matter not a matter of public spectacle. All too often, the perceived lesser-advantaged spouse may play the publicity card (or threaten to do so) in order to opt out a financial advantage – or in simple parlance – vie for “hush” money. Perception by the lesser-advantaged spouse that the financially-advantaged spouse will deal with her or him fairly (whatever that may mean) will usually go a long way toward negotiations where calmer minds prevail. Another method of seeking to assure a divorce far from the public eye is for a pre-marital agreement to address issues of confidentiality and mediation and/or arbitration out of the public limelight.Continue Reading Divorce for the Well-To-Do