Some people think there are no winners in divorce court. While I like to have a more optimistic outlook, it goes without saying that family law cases sometimes yield unhappy litigants.   With emotions running high and issues so personal in nature, it is common to have one, or both, parties unhappy with a decision of the court. So what do you do when you’re on the receiving end of an unfavorable court order? A recent Appellate Division case reminds us that, when looking for a second bite at the apple, procedural errors made by the lower court can be just as important as substantive ones.

In the recent unpublished decision of J.H. v. K.H., the defendant was dissatisfied with a trial court’s order, so he filed a motion to vacate that order and, when that was unsuccessful, he filed an appeal. This case involved post-divorce issues related to interpretation of the parties’ property settlement agreement (PSA) and issues regarding child support.

At the time of divorce in 2016, the parties executed a two-page PSA, without the assistance of attorneys. It provided, in part, that defendant would pay child support to plaintiff and he would give plaintiff the former marital home “free and clear” by September 2021. When defendant failed to meet his child support obligations, plaintiff filed a motion in 2017 to enforce her rights under the agreement, as defendant’s failure to pay support allegedly resulted in her inability to pay the mortgage on the former marital home.

Defendant contended that he was never served with a copy of the motion papers and only learned of the pending motion by calling probation to inquire about his support arrears. When he appeared in court on the return date of the motion, he was “advised to leave” by court staff because he had filed no papers and the matter was being decided as unopposed.

The resulting order found defendant in violation of litigant’s rights for failure to pay child support and “regarding” the former marital home. The statement of reasons provided with that order cited to the PSA to provide that “defendant shall satisfy his child support obligations” and “bring his mortgage payments current,” with no reference made whatsoever as to the proper service of motion papers on defendant or his ability to meaningfully respond.

When defendant filed a motion to vacate that order, he certified that he never received the motion papers, while plaintiff certified to the contrary. Defendant further requested a finding (or alternatively, a plenary hearing) as to interpretation of the two-page PSA, as he contended it was the parties’ intention to afford plaintiff a five year window to refinance the former marital home and that he was not responsible for mortgage payments in the interim. The trial court denied oral argument on this motion and summarily denied defendant’s request, in part finding that defendant was obligated to “give” plaintiff the property by September 2021 pursuant to the PSA and that he shall therefore “deliver the property” to her by that date. The trial court further found this provision of the PSA to be “unambiguous.”

On appeal, the Appellate Division found several procedural errors below:

Deficient Statement of Reasons: The trial court erred by failing to make requisite findings pursuant to R. 1:7-4(a). The appellate court held that meaningful appellate review is inhibited unless the judge who sat below sets forth the reasons for his or her opinion. The appellate court determined that the trial judge made insufficient findings and conclusions of law. The statement of reasons issued with the first trial court order was deemed conclusory in nature. The court found this to be especially problematic where the motion was decided on the papers.

Failure to Grant Oral Argument: The trial court erred in denying oral argument on the motion pursuant to R. 5:5-4(a).  The appellate court found that there is a strong presumption in favoring argument of motions other than calendar and routine discovery matters. This error was particularly egregious considering the conflicting certifications of the parties filed in connection with the motion to vacate.

Service of Process Issues: Though not expressly stated in the decision, the appellate court seemed troubled by the lack of probing inquiry made by the trial court into the allegedly deficient service of process of the original motion on defendant. Further, the appellate court chastised the lower court for not curing this procedural deficiency by affording defendant the opportunity to present his “potential, meritorious defenses” in the first motion.  In theory, this could have been accomplished either by granting oral argument or permitting an out of time submission.

Relying on these procedural issues, in part, the Appellate Division reversed the trial court’s determinations and remanded for a plenary hearing regarding the parties’ intention as to their PSA.

While in this case, the appellate court found both procedural and substantive issues with the lower court’s decision, it shows how fatal procedural errors can be, regardless of substance. If you are dissatisfied with a court ruling, in addition to analyzing the merits of the ruling, don’t forget to look at how the court came to that decision, as a procedural error may be the key to undoing the  decision the court has made and getting the opportunity to make the court take a second look at your substantive issues.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at

We often deal with cases in which one or both spouses own a business.  In many of those cases, a spouse received their interest in a business prior to the marriage, either from a family member, or otherwise.  With regard to premarital assets and/or any other assets that a party claims is exempt, that party must prove that the asset is truly exempt.  The inquiry doesn’t end there.  If the asset is an active asset, like a business, the other party may share in the increase in value of the business during the marriage.  Typically, the non-titled spouse will share in the increase in value if they can show that they contributed to the increase by make financial or non-financial contributions.

An interesting question that is not often discussed is who bears the burden of establishing what the premarital value actually was.  That question was recently addressed in Fox v. Fox, an unreported (non-precedential) Appellate Division decision released on April 9, 2019.  In Fox, the Appellate Division determined that in that case, the burden was on the business owner to establish the pre-marital value.  Specifically, the Appellate Division stated:

… Sculler explains that the non-owner spouse must show that “there has been an increase in value of the asset during the term of the marriage.” 348 N.J. Super. at 381. Naturally, to establish an asset’s appreciation, its value must be established at both the beginning and the end of the valuation period. Sculler can be read to suggest it was Catherine’s burden to prove EBN’s value in 2004.

We do not think such a rule makes sense in this case. General principles suggest that courts must consider the parties’ “comparative interests” and “relative litigational strengths,” their “access . . . to proof[s],” and the “objectives to be served by the evidence,” when assigning the burden of proof. Romano v. Kimmelman, 96 N.J. 66, 89 (1984). Here, Edward contends EBN had value before marriage. In other words, he asserts part of the asset is immune from equitable distribution. Because the burden to establish an asset’s immunity “rest[s] upon the spouse who asserts it,” Painter, 65 N.J. at 214, we hold that Edward must prove that EBN had value in 2004. As it may have been unclear that he had that burden, it is fair to remand to give him an opportunity to present proof as to EBN’s pre-marital value.

While it is interesting that the Court stated that this should be the process “in this case”, the rationale provided suggested that this should be the rule in every case.  When would the non-titled spouse have better “access …. to proofs” than the owner of the business?  As to the objectives served by the evidence, when would the non-titled spouse’s objective be to show a premarital value.  Put another way, despite the holding in the Sculler case that was discussed in the opinion, it seems that if this logical rationale was to be followed, in most of not all cases where a party is claiming the exemption of the premarital value, it will be their burden to establish the value.

There were a few other interesting points that one can take away from this case.  First, the court reminded us about what non-financial contributions may look like when it stated:

The non-owner spouse can contribute to an asset’s appreciation in a number of ways. For instance, a non-owner spouse can provide the necessary support that allows his or her partner to devote time and energy to a business. Id. at 339 (concluding that a spouse who “took care of the home, worked part – time and raised [their son]” contributed to an asset’s appreciation).

Second, just because a business is not profitable, does not mean that it has no value.  The Court stated, “An unprofitable business may still have a positive fair market value.  For instance, a business can have valuable tangible assets or inventory, as well as intangible assets, such as goodwill and customer lists.”

Third, despite the often espoused notion that businesses are never divided 50-50, in this case, the increase in value of the business was, in fact, equally divided and that decision was affirmed by the Appellate Division.

Fourth, in this case, the husband argued that the value as of the date of separation should have been used as opposed to the value as of the date of Complaint which is the norm.  That notion was roundly rejected by the trial court and the Appellate Division, who noted that argument is just inconsistent with the law.  Rather, the court reminded us again of the exceptions to using date of complaint as the cut-off date when it held:

The Court recognized two exceptions to the Painter rule: first, where the couple physically separated and entered into a written separation agreement, the agreement date governs; second, where the couple separated and actually divided their assets pursuant to an oral agreement, “assets acquired afterwards are not eligible for equitable distribution.”

For the reasons stated above, the Fox case provides many useful reminders regarding the valuation, burden of proof and division of active assets.  It also provides the opportunity to remind people that if they want to immunize a premarital business, they should give serious consideration to entering into a prenuptial agreement.

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

I have previously written about the custody and parenting time issues that may be presented when a child is moved from state to state within the country.  But what of child support?

In an interesting recent unpublished decision, Flynn v. Flynn, the New Jersey Appellate Division examined the question: in a case where multiple child support orders have been entered in multiple states, which state has jurisdiction over the issue, and which state’s law controls?

The Uniform Interstate Family Support Act (UIFSA)

Because the issue of modification and enforcement of child support requires a level of uniformity and coordination among the fifty states, there is a Uniform act which different states – including New Jersey – have adopted with slightly different modifications or additions depending on the policies of each state.  The purpose of UIFSA is to resolve questions about which state has jurisdiction in the event multiple child support orders are entered over the course of a child’s life in different states, and provides the courts with guidance on which law to apply.Image result for public domain image map of the united states

Jurisdiction Over Child Support Matters

Under New Jersey’s version of UIFSA (N.J.S.A. 2A:4-30), where there are two or more child support orders that have been issued by tribunals in this state OR another state regarding the same obligor and child(ren), and New Jersey has personal jurisdiction over both the obligor and obligee, then the controlling child support order is the one that is issued by the current home state of the child.  For example, in Flynn, the parties were divorced in Pennsylvania.  After the divorce, both of them – together with the children – moved to New Jersey.  New Jersey, then, became the state with jurisdiction to modify and then to enforce the child support obligation.

But Which State’s Law Applies?

Just because a State is conferred jurisdiction (which is merely the authority or power to make a decision about the parties and the issues between them) does not mean that State’s law is the one that applies.  Indeed, New Jersey’s UIFSA statute makes clear that even if it has jurisdiction to modify or enforce a child support order, its courts cannot makes modifications which substantively depart from the laws of the state that issued the Order:

[The] law of the issuing State or foreign country governs:  the nature, extent, amount and duration of current payments under a registered support order.

N.J.S.A. 2A:4-30.171(a)(1).


A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support.

N.J.S.A. 2A:4-30.178(c)

Importantly, the “issuing state” may not be state that ORIGINALLY entered a child support order.  We’ll get to that next.  The “issuing state” is the state that issued the controlling child support.  So, in Flynn, New Jersey was the issuing state.  New Jersey had entered multiple orders over the years regarding child support and had jurisdiction over the issue.  Therefore, New Jersey law applied.

EXCEPT with respect to one very important issue which was the crux of the Flynn case:  duration of the child support obligation.  On this particular issue, New Jersey law says that the law of the state that entered the first child support order must control:

In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support.  The obligors’ fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.

N.J.S.A. 2A:4-30.178(d) (emphasis added).

In Flynn, the Father sought to apply the law of Pennsylvania to the question of whether his child support obligation should be terminated, or whether he had an obligation to continue to pay child support for his son while in college.  Under Pennsylvania law, his obligation would not have continued; but under New Jersey law, which requires parents to continue to provide support for children while they are in college, he would have been required to continue to pay.  The Court applied Pennsylvania law and terminated his obligation.

And this makes sense.  When parties negotiate the various financial aspects of their agreement – or when the Court decides these issues if a trial takes place – the terms may be dictated in part by how long the support will be paid.  If all the other pieces of the puzzle were based upon this question, then it would be unfair to blindside an obligor by building in additional time to make payment when that was not contemplated at the time the original child support was entered.

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

A few months ago, I blogged about due process for defendants in domestic violence actions.  We now have another unpublished decision on this topic but with a different due process violation.  In the matter of S.C. v. Z.B., the parties had cross-temporary restraining orders (“TRO”) against each other stemming from the same incident involving an argument and broken plate.

In the TRO procured by S.C./husband, he alleged the predicate act of criminal mischief based on his allegation that Z.B./wife broke the plate during an argument in front of S.C. and their children.  Z.B. later procured a TRO against S.C. for the same incident alleging the predicate acts of criminal mischief and harassment based on her allegation that S.C. shoved her, grabbed the plate from her and broke the plate on the floor.  Each party alleged prior acts of domestic violence against the other.  After a lengthy five-day trial, the trial court entered an FRO against Z.B., based in large part on credibility findings, and denied Z.B.’s request for a final restraining order (“FRO”) against S.C. based on the same findings.  However, and what matters here, is the trial court’s finding that S.C. did not prove the underlying act of criminal mischief.  Rather, the trial court sua sponte (on its own) entered the FRO against Z.B. based upon harassment even though harassment was not alleged in S.C.’s TRO.  Therein lies the due process violation.

The issue here is this: The TRO serves as the complaint placing defendant on notice of the allegations for which he/she has the right to defend against.  This includes underlying acts, facts of the incident and prior domestic violence history.  The trial court is limited to the four corners of the TRO at the FRO trial.  Given that the harassment box was not checked off on S.C.’s TRO, Z.B. was not on notice to prepare a defense against harassment.  In practice, plaintiff’s in domestic violence matters often amend their TRO after the initial entry for a myriad of reasons, including to add other underlying acts, specify the facts of the underlying incident, adding to the history of domestic violence listed, etc.  Keep in mind that a party procuring a TRO is often in a frenzy having just experienced the allegations and called the police.  Also, the TRO is generally obtained without counsel.  Thus, it makes sense that the initial TRO would require amendments.  However, in order to assure due process to the defendant, the FRO hearing is adjourned following the TRO amendment so the defendant has an opportunity to prepare the appropriate defense.

This concept is codified in precedent setting case law as cited by the Appellate Division in S.C. v. Z.B., and is one that we often use in practice when representing either side on the domestic violence action.  As the plaintiff, you do not want to be in the position of S.C. and lose your FRO because you forgot to check a box or an adjournment was not granted when it should have been.  As the defendant, you need to ensure that you have appropriate notice of all allegations to prepare your case.

The takeaway here is simple but extremely important.  If you are the plaintiff, make sure your TRO is thorough and that you allege any relevant underlying acts based upon the facts of the incident.  If you did not have the opportunity to do so when you initially obtained the TRO, then have it amended.  Also, make sure that all of the relevant boxes representing the predicate acts are checked off (e.g. harassment, stalking, assault, battery, criminal mischief, etc.)   If you are the defendant, make sure you request an adjournment if needed to prepare your defense against the initial and future amended TRO.  Either party doing otherwise may be a fatal error as we see in S.C. v. Z.B.

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

Lindsay A. Heller, Associate, Fox Rothschild LLP

spring cleaning

Ahhh, April. This month always feels like a fresh start for me. The sun emerges and it starts to truly feel like spring. April also happens to be my birth month, so I can’t help but feel refreshed and energized at the start of this season.

There’s a reason why “spring cleaning” is a thing, and this year, home and office organization are all the rage. If you’ve managed to avoid learning the name Marie Kondo or the phrase “spark joy” in 2019, I commend you. If you have no idea what I’m talking about, I highly recommend the Netflix special about tidying up and decluttering, which has the masses taking spring cleaning to the max this season.

If you’re already on the bandwagon, you have probably come across a big pile of paperwork you’ve “filed” in the corner of a spare room somewhere, dubiously eyeing it and dreading the task of sorting through what you must keep and what can be discarded. If you’ve been through a divorce, you probably have a box or two of old court documents lying around, taking up space and reminding you of a less pleasant time in your life.  You are probably all too eager to toss it entirely (the likelihood of divorce paperwork “sparking joy” is slim!) but unfortunately there are a few things you really need to keep on file. In a perfect world, we would recommend that you keep your entire file, but if that is impossible for you, here are the highlights on the necessities:

  1. Your Judgment of Divorce: This document is the single most important paperwork from your divorce. Your Judgment of Divorce proves that you are legally divorced. It also proves that you are free to remarry! It should have a gold seal on it from the time it was entered. This copy is incredibly important. When transferring assets, applying for refinancing on a loan or even changing your name after divorce, various agencies may ask to see a Gold Seal Copy of your Judgment of Divorce.  And while you can make copies of the judgment of divorce to your heart’s content, don’t give the Gold Seal copy away! If you lose it, you can always obtain a new Gold Seal copy from the Courthouse in the County where you got divorced, but they will charge you a fee. I highly recommend keeping this document in a safe place, like a safe deposit box or fireproof box in your house.
  2. Your Marital Settlement Agreement: For the majority of litigants who dissolve their marriage by way of agreement instead of a trial, you should have a marital settlement agreement, sometimes called a property settlement agreement, which outlines all of the issues in your divorce and how you’ve agreed to resolve them. This agreement probably addresses issues like alimony, divisions of assets and debts, custody, child support, contribution to college costs, filing taxes, and other miscellaneous items. It probably outlines each party’s respective rights and obligations, as some things set forth in your agreement may not happen right away. For example, if you have adolescent children but your agreement outlines how their college expenses will be funded, portions of the agreement may not “kick in” until many years later. You’ll need a copy of your agreement on hand to know what you are contractually obligated to do and when. Speaking of obligations, it should be no surprise that sometimes people don’t always abide by the terms of their agreement.  If you find yourself in a situation where your ex-spouse is not living up to his/her end of the deal, and you need to enforce the agreement in some way (whether it’s filing a motion in court or trying to go to mediation) you’ll absolutely need a copy of your agreement to decipher exactly which terms are not being complied with.
  3. Your Case Information Statements: These are the forms you filled out during your divorce which set forth your income, assets, liabilities, and expenses. This document was critical in litigating and resolving your divorce, but may become relevant again in a post-divorce situation, if you have outstanding issues to address. For example, if you want to file an application to modify your alimony obligation (or need to defend against one) your Case Information Statement will have helpful information about what the financial state of affairs was at the time you got divorced. If you or your ex-spouse is trying to show a change of circumstances, it is helpful to know what those circumstances were at the time so you can see how they’ve changed. If you have a copy of your ex-spouse’s Case Information Statement, you should definitely keep that, too.
  4. All Orders entered in your Case: I like to think of Court Orders as the Cliff’s Notes for a case. While Court Orders don’t tell you everything about the history of a case, they give you a fairly accurate abbreviated summary of what happened and when. If you ever have to recall who filed a motion or when a critical event in your divorce took place, a Court Order is a great first place to look to hone in on a date or an outcome.
  5. Any Transcripts or Recordings that you Ordered: In the context of a post-divorce dispute, these documents may or may not be relevant later on, but they are still worth keeping because, in order to retrieve another copy from the Court, you’ll have to pay a fee. Transcripts can be quite costly, so there’s no point in purchasing the same thing twice if you already have a copy on hand.

I must reiterate that it is important to keep all of your old court records if you have the space, including all of the letters and emails your attorneys may have sent throughout the litigation. While your attorney has an obligation to keep your files for at least seven years, you may need to pay for the copying costs to get those. Depending on the amount of time that has passed, your records may no longer be available. If you are tech savvy and can digitize all of your records, that’s even more so a reason to keep everything.  But if you simply can’t, keep in mind these spring cleaning tips to make sure you have the most important legal documents ready and accessible if you need them.  Happy cleaning!



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at

Anything can happen in court.  Last week, while in the midst of an appearance, I served as de facto wedding photographer.  Although the bride and groom were blissfully unaware of it, their wedding ceremony came as a welcome reprieve from an incredibly heated argument between me and my adversary, back in court just three months after finalizing our clients’ divorce.  It was hard to imagine that the parties – who had not only hired attorneys to argue on their behalf, but were also fighting with one another in the court room directly – had ever stood in the shoes of that bride and groom.

The entire episode served as a reminder that practicing family law is different.  Behind every legal issue is also an emotional thread that drives the parties.  Sometimes, this emotional component takes over and causes a good legal case to go haywire.  Nowhere can things go more wrong than in the courtroom.

Oftentimes, the same judge will be with your case for its entire lifetime.  Judges are people too, and the observation or opinion that one of the parties cannot control him or herself in their courtroom may impact their view of your case and, ultimately, their rulings.  Here is what I tell clients about how to behave in front of the judge, despite the emotional content of their cases:

  1. Don’t overreact.  Judges say things that can be upsetting.  A judge may make an observation that a party does not think is accurate or fair.  Or, the judge may make a decision that one party believes to be wrong or out of line.  Keep it to yourself.  Nobody likes a sore loser.  And by reacting negatively, you may be re-enforcing the judge’s already negative opinion of you.  By contrast, sometimes you’re on the other side of the equation and you are thrilled that your ex is FINALLY being read the riot act – and by a judge, no less.  Well, keep it to yourself.  Nobody likes a show-off, either.  This also applies to any friends or family members you might bring with you for moral support (who should probably wait outside the courtroom, anyway).
  2. When in doubt, act like you’re watching paint dry.  See above.  If you can’t control yourself, tune out.
  3. Dress appropriately.  As a party, you do not need to wear a suit to court.  But remember, again, judges are people too.  Just like everybody else, they are judging your appearance.  Don’t show up in an outfit that shows disrespect to the Court.
  4. Don’t speak unless spoken to.  If you hired an attorney, let the attorney do the talking.  You are paying your attorney to actually represent and speak for you, so let him or her do that.  If you start speaking on your own, you may say something against your own interest, or inadvertently reveal a privileged communication.  Plus, judges hate it!  They want order in their courtroom, and if the parties and the litigants are all arguing with one another, it is a disaster.  If the Judge asks you a question directly, keep it short and sweet.
  5. Don’t fight with your attorney, your ex, or your ex’s attorney.  At least not where the judge can see you.  Sometimes, emotions run high.  You might disagree with something your attorney said.  That is a privileged conversation that you should have with your attorney in private.  Undermining your attorney in front of the judge is not the way to help yourself.  Alternatively, you might be REALLY angry at something your ex or his/her attorney said about you in the courtroom. Let your attorney deal with that at the appropriate time.  And remember, the judge’s staff (his/her secretary, law clerk, court clerk, and officer) are an extension of the judge.  If they see the courthouse equivalent of the Fight of the Century happening – even if its outside of the courtroom itself – they are going to let the judge know about it.


Jessica 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

When networking or meeting with a potential client, I am often asked: “Why should I hire you?”  Most people think that more experience is always better and, at first blush, that makes sense.  After all, if I were having surgery, I’d certainly want to go under the knife with a credentialed surgeon instead of a novice intern.  However, when it comes to the practice of law, especially family law, there can be a great benefit to using a neophyte attorney with a few years of experience under his or her belt. Here’s why:

  1. We think outside the box. “Maverick” is a synonym of “newcomer.” And do you know what a maverick is? One who takes chances and departs from the accepted course. Some veteran attorneys regale you with their war stories or boast an “I’ve seen it all” attitude. This experience is really valuable, but remember that years of experience does not always mean expertise.  The wrong kind of lawyer may be limited to his or her own ideas about what “kind of case” you have or how it will resolve in the end. Lawyers who are eager to get creative, come up with unique problem solutions and are not limited by their predictions and assumptions are invaluable. There’s also nothing more satisfying than being underestimated by your more experienced, condescending adversary, only to come up with better strategies.
  2. Our contacts are just as important (if not more important) than our mentors’. The big-wigs rub elbows with judges and other esteemed lawyers. They have visible positions on boards and bar associations and their walls are lined with accolades. Younger attorneys have equally valuable contacts, especially in the courthouse, where it really counts.  Many newer attorneys are recent law clerks and have firsthand knowledge of the way judges in their county think and rule.  They are familiar with the secretaries, court staff, and other administrators and know just who to call to answer a question or streamline a process. For several years after law school, our classmates are clerks in the courthouse and act as a valuable resource in practice.  Sometimes it pays more to know the bouncer than the headliner.
  3. We are cost-effective. This one’s obvious, but critical. Lawyers (especially in family law) are routinely paid by the hour for their services. With more experience, comes higher hourly rates. If managing costs is a big concern, selecting an attorney with three years versus twenty years of experience can make a huge difference to your bottom line.  If you expect your case to be relatively straightforward, selecting an attorney with a lower hourly rate may be your best cost-saving strategy.
  4. We are savvy information-seekers. I wanted to write this entire post without using the “m” word, but let’s face it, millennials are really good at technology. A smart millennial knows when to ask for help but also knows where to look. If you suspect your ex of cohabiting and you want to modify your alimony obligation, the conventional first step would be to hire a private investigator. A social media-savvy attorney may get the same answer with a targeted social media search (assuming you ex has lax privacy settings, of course). And when it comes to seeking answers, a good attorney, young or old, knows when to ask for help.  A wise, budding attorney will have a mentor who acts as a sounding board.  Even the most experienced attorneys sometimes need a second opinion, too.
  5. We hear you. Family law is emotionally taxing. Whether you’re negotiating a prenup, arguing over custody, navigating a divorce, or fighting with your ex after the fact, all of these issues can be draining, especially if they are high-conflict. The attorney with many years of practice invariably becomes immune to the emotional rollercoaster.  I’d dare say it’s a necessity to keep up with the practice. And you need a lawyer who can take the emotions out and give you objective counsel about your legal rights. A younger lawyer is trained to do just that, but can also empathize with your situation.  Some days you really need to be “heard”.  All great lawyers, old and young, have mastered this skill.  A newer attorney, who probably has less clients than the decorated expert, likely has more time and emotional bandwidth to do so.

Depending on your situation, it may be logical to go straight to the top. Maybe you have a very complicated case with a lot of moving parts.  Maybe your case has a long history and you need some reputational muscle to bring out the big guns and bring your matter to a close.  In these cases, this is strategically your best choice.  However, I invite you to reconsider your assumption that older is always wiser.  For the right type of case, the newer kid on the block just might be your greatest asset.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at

In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog.  But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment.  Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff.  In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

In L.G., the Complaint for Divorce was filed in July 2017 following an approximate thirteen year marriage that commenced in 2004 and fell apart due to financial issues related to L.G.’s spending habits, including spending down the parties’ joint accounts, their daughter’s accounts, defendant’s inheritance and substantial credit card charges, causing T.G. to place her on a budget. The relevant restraining order in L.G. occurred after the divorce complaint was filed and after L.G. dismissed a pre-complaint temporary restraining order (“TRO”) against T.G.   That initial TRO resulted from a telephone call and text message exchange between the parties in response to T.G. closing their joint bank account.

Back to the TRO at issue here… Approximately three months post-complaint in October 2017, T.G. had his father retain a private investigator to conduct surveillance on L.G., including by having a GPS tracking device placed on her vehicle without her knowledge.  L.G. did not discover the device for nearly a month. During this period, there were 88 successful logins to view activity on the GPS that provided real-time whereabouts and approximately 391 updates from the GPS.  L.G. was followed personally for about three days.  Also during this period, and on the day that L.G. discovered the GPS, T.G.  questioned L.G. about her whereabouts and evasively confronted her with information he knew  from the tracking device before she knew it existed.  The parties got into an argument and each of them obtained a TRO against the other.  Following a trial, L.G. was granted an FRO and T.G.’s TRO was dismissed.

L.G.’s FRO was entered based upon the predicate acts of stalking and harassment – both of which stem from the GPS.  The statute guiding the predicate act of stalking is:

N.J.S.A. 2C:12-10(b)

  • [a] person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

N.J.S.A. 2C:12-10(a)

  • For the purposes of this statute:
    • (1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly or indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person’s property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct of a combination thereof directed at or toward a person.
    • (2) “Repeatedly” means on two or more occasions.
    • (3) “Emotional distress” means significant suffering or distress.
    • (4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

T.G. came up with plenty of defenses regarding the GPS, including that “he did not personally install it; he never threatened her; he did not personally maintain visual and physical proximity to her ; and that his behavior was not persistent because it occurred over a one week period”  However, the Appellate Division didn’t buy it.  Rather, the court looked to the purpose of the stalking statute to “cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors” and “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked”.  The court also looked to the purpose of the Prevention of Domestic Violence Act to assure the maximum protection to victims.  Against this background, the court did not forgive T.G. because the device was on L.G.’s car as opposed to inside the home, such as in a bathroom or bedroom where L.G. would have a greater expectation of privacy.  Additionally, the court did not buy T.G.’s arguments that he should avoid the consequences of an FRO because he did not physically place the GPS on L.G.’s car and instead authorized his dad to do so.   Ultimately, the Appellate Division opined that “[i]ndirectly and through a third party, T.G. had L.G. followed, monitored, observed, and surveilled, by using adevice in violation of N.J.S.A. 2C:12-10(a).”

The Appellate Division then turned to harassment, which incorporated the same behavior from the above stalking, although not placement of the GPS itself. The statute guiding the predicate act of harassment is:

N.J.S.A. 2C:33-4:

  • 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.

Here, the trial court found that while the GPS was not harassment as T.G. did not intend for L.G. to detect the device, he did use the information obtained from the GPS to intentionally harass, intimidate and try to trap L.G., as well as to cause alarm and serious annoyance.

As to the history of violence and need for protection, the trial court found L.G.’s testimony credible regarding her fear of T.G. and need for an FRO to “feel safe with her kids”, as well as the parties’ prior arguments including an incident when T.G. said to L.G. “do you know what one punch will do to your face?”, as well as the physical incident when T.G. pushed and pinned down L.G. and, as L.G. later testified, threw her phone against the wall.  T.G. had also demanded access to her phone and contacts.

When I said this opinion was thorough, I wasn’t kidding, but it’s important.  The takeaway here is to think twice about placing a GPS on a spouse’s vehicle.  This is especially true when the surveillance has no bearing on your underlying claims and is merely for personal knowledge.  It also doesn’t matter that you may feel aggrieved by your spouse for spending habits or similar reasons.  Remember, even your dad can’t get you out of this one.

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

Lindsay A. Heller, Associate, Fox Rothschild LLP

Divorces involving a spouse in the military generally involve unique issues.  In the recently published decision of Fattore v. Fattore, the Appellate Division held that the trial court cannot replace, “dollar for dollar”, an ex-spouse’s benefit from a military pension that was lost after the military spouse elected to receive disability benefits.  Doing so is against Congress’ intent to omit such disability benefits from veteran retirement pay that is otherwise subject to equitable distribution.  However, the trial court may treat the lost pension benefits as a change in circumstances warranting alimony and/or an alimony modification for the spouse who lost his/her share of their ex-spouses military pension.  This is true even when there is an alimony waiver as part of the parties’ divorce, which is what the parties had in Fattore.  After all, the family court is a court of equity and so we should expect, and hope for, some sort of an equitable result.

Okay, that was a mouthful!  It’s not often that our New Jersey family law cases explore military law, Congressional intent and/or United States Supreme Court cases.  In order to better understand the complexities here, and delve into that Federal law, let’s break this down with the relevant facts:

  • When the parties divorced in 1997, they both agreed to waive alimony from the other.  They distributed the equity in the marital home.  They also divided their pensions in equitable distribution, with each party being entitled to 50% of the marital portion of each other’s pension.  Plaintiff/ex-wife had a pension through her employment as an operating nurse and Defendant/ex-husband had a pension through his service in the Army National Guard. Defendant was still serving in the Army National Guard at the time of their divorce.
  • The parties obtained a Qualified Domestic Relations Order (“QDRO”) following their divorce, which is the Order that allows for distribution of a retirement account in the event of a divorce without taxes and penalties typically associated with retirement account withdrawals.
  • In 2002, Defendant became disabled and, accordingly, was forced into retirement from the Army. Upon becoming disabled, Defendant was authorized to collect his pension and Social Security benefits.  After collecting his pension for some time, Defendant elected to receive tax-free disability benefits.  Defendant’s receipt of these disability benefits eliminated Plaintiff’s share of the Army pension.
  • In the meantime, Plaintiff was unaware that Defendant’s pension was in pay status, while Defendant believed that Plaintiff was collecting her proper share.  Plaintiff learned that her share of the pension was forfeited after she contacted the Army offices regarding the status of her payments that she never received.
  • In 2016, Plaintiff filed a Motion seeking compensation for her equitably distributed share of Defendant’s pension that she lost by virtue of Defendant collecting disability.  The trial court held that Defendant must pay Plaintiff a tax-free equitable distribution payment of $1,800 per month pending  a pension appraisal that the trial court ordered to determine the value of the Army pension at the time of the parties’ divorce.  Notably, Plaintiff sought alimony in lieu of the pension payment but the trial court denied that request, holding that alimony does not replace equitable distribution.
  • Three months after the trial court’s decision, but before the Appellate Division decision, the United States Supreme Court issued a decision in the matter of Howell v. Howell, based on an Arizona family law case.  To understand Howell, we must first know that Congress had previously enacted USFSPA, which permits state courts to equitably distribute “disposable retired pay” except for such retirement pay that is waived because of disability benefits.  That waived pay is excluded from equitable distribution.  This is the exact issue faced by the parties in Fattore.
  • The Supreme Court in Howell, as cited by Fattore, held that “a military pension, which has been equitably distributed, is not a vested right, but rather, a contingent benefit where the pension is later reduced as a result of a veteran’s disability and”

 [t]he state court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency. The existence of that contingency meant that the value of [the wife’s] share of military retirement pay was possibly worth less—perhaps less than [the wife] and others thought—at the time of the divorce.

  • The Supreme Court in Howell further found that state courts cannot overcome Congress’ intent to omit disability benefits from disposable retirement pay.  In other words, to give the spouse “dollar for dollar” what he/she lost from the pension due to the military spouse’s disability benefits is contrary to Congress’ intent when enacting USFSPA.

Now that we have the background, let’s talk about the Appellate Division’s holding:

Close up of wooden gavel isolated on white background

  • Following Howell, which the trial court did not have at the time it decided this case, the Appellate Division reversed the decision because the trial court’s order for a pension evaluation and, seemingly, “dollar for dollar” replacement of the amount Plaintiff lost from Defendant’s pension was contrary to USFSPA and Howell.
  • The Appellate Division rejected potential remedies of (1) contractual enforcement/indemnification because the parties did not have such an agreement; (2) offset or reallocation of equitable distribution because of the amount of time that passed and, importantly, “equitable distribution is final and not subject to a change in circumstances”; and (3) res judicata because the Supreme Court had already issued an opinion in the case of Mansell, holding that a veteran’s retirement benefits lost due to collecting disability benefits are not disposable retired pay that is subject to equitable distribution.
  • Ultimately, the Appellate Division held that an alimony award may be the appropriate remedy notwithstanding the parties’ alimony waiver at the time of their divorce.  In order to get around this waiver, the Appellate Division cited prior case law standing for the proposition that Family Part judges have “a broad supervisory role” to determine whether a divorce agreement is fair, and that Family Part judges have “greater discretion when interpreting such agreements”.  The Appellate Division also noted the parties’ duty of fairness to each other, which is separate from the judge’s duty to assure fairness.  The Court did not stop there – it continued by citing to the parties’ income disparity at the time of their divorce (with Defendant earning 34% more than Plaintiff) and the fact that Plaintiff gave “valuable consideration” in exchange for the alimony waiver.  Notably, the Court stated:

[T]he unforeseeable loss of the bargained for pension benefit was a substantial and permanent change in circumstances, which invalidated the waiver.  Upholding the alimony waiver in these circumstances would be wholly unfair.

While there is a lot to digest from this opinion, the security it offers is something special about the Family Part being a Court of Equity.  Of course, the military spouse who thinks he/she has an alimony waiver may not feel so secure.  It therefore follows that this decision provides good practice tips for divorce matters with spouses in the military – Rather than going with the typical division of retirement benefits by way of QDRO, we may want to consider an offset in equitable distribution that avoids having the distribute a military pension and, thus, the potential loss to the non-military spouse.

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

Lindsay A. Heller, Associate, Fox Rothschild LLP

The issue of the division of deferred compensation in divorce – more particularly, unvested deferred compensation, is often one that is hotly disputed.  This is in part because there is not a lot of case law on the issue.  The case law is clear that deferred compensation (eg. stock options, restricted stock, RSUs, REUs, etc.) granted during the marriage, or even shortly after the date of complaint but for efforts that occurred during the marriage are subject to equitable distribution.  The fights arose regarding whether (1) the deferred compensation should be treated as either income and/or an asset; and (2) if an asset, should they be divided 50-50 or in some other percentage.  In fact, I blogged about this in a piece entitled Deferred Compensation – Income, Asset or Both, back in 2013.  at the time, I said:

If the deferred compensation is not vested and requires continued, post-divorce Complaint service in order for vesting to occur, that is where things get more difficult.  I have seen some simplistically argued that anything granted before the Complaint gets equally divided no matter when it vests.  More recently, I have seen a greater use of some type of calculation (coverture fraction) used to recognize the post-complaint service of that spouse.  Many believe this to be the fairer way of equitably dividing deferred compensation.

There hasn’t been much case law on this issue since that time, though a case that I will discuss later, suggests that the language of the documents granting the deferred compensation is key,  That said, late in 2018, we got some more guidance from the Appellate Division.  Specifically, in the reported (precedential) opinion in the case of M.G. v. S.M. decided on December 26, 2018, Judge Mawla gave new guidance with regard to the distribution of deferred compensation, again pointing to the importance of the plan documents.

In M.G., the plaintiff worked as a  principal consultant for a large multi-national corporation. Beginning in August 2003, and every August thereafter until 2010, plaintiff received a stock award from his employer. Plaintiff received 490 shares in 2003 and those years began to vest at a rate of 174 shares per year commencing in 2011. A similar vesting schedule was applied to the other grants.  Note that in my experience, this is an unusual vesting schedule.  That is, it is unusual, in my experience, for their to be  a 7 year gap before deferred compensation vests.  Typically, I have seen deferred compensation serially vest, over three or five years, starting with the year following the grant.  What that means is that if 600 shares of restricted stock were granted in 2018, then they would vest 200 shares each in 2019, 2020 and 2021.  Other times, you see shares cliff vest in 3 or 5 years.  What that means is that if 600 shares were granted in 2018 that vest in 3 years, all 600 shares would vest in 2021.  This is important because the argument you most often heard from the titled spouse is that the because the shares will vest post divorce allegedly based upon post divorce efforts, that they should be distributed in a less than 50-50 percentage.

Back to M.G.  At the date of complaint, only 3 of 8 awards were fully vested.  At trial, plaintiff offered into evidence plan documents that stated:

Stock-based compensation is a key component of our reward program . . . because it provides an ownership stake in the company’s success for employees who contribute over the long term. To preserve this core element of our culture, in July 2003, [we] decided to grant employees stock awards, which represent the future right to receive shares of . . . stock when a vesting requirement is satisfied.

. . . .

At [our company] we believe that employees who become shareholders maintain a long-term, vested interest in sustained individual excellence and the overall success of the company.

. . . .

Each eligible employee’s annual stock award grant is based on his or her impact, level, and country.

In my experience, the plan language for most plans is much more generic than this.  However, in this case, the plan language supported the husband’s position that his continued employment was required for him to receive the value of the options.  Judge Mawla noted:

Plaintiff’s unrefuted testimony was clear that post-complaint efforts were necessary to cause the stock, which had not vested as of the date of complaint, to become payable. The plan documents and literature adduced in evidence at trial, and attached to plaintiff’s post-judgment motion, stated vesting would occur dependent upon plaintiff’s post-complaint performance. We reject defendant’s argument that “performance” in this case required plaintiff merely to continue living and go to work. Nothing in the record supports this assertion. Indeed, all of the objective evidence in the record demonstrates much more was required of plaintiff as a high-level corporate employee in a highly competitive industry.

As we noted, plaintiff’s employer described the stock plan as a “reward program . . . because it provides an ownership stake in the company’s success for employees who contribute over the long term.” Company literature explained the stock grants were to “maintain a long-term, vested interest in sustained individual excellence and the overall success of the company.” This language does not suggest the stock would vest through mere continued employment without consideration of plaintiff’s level of proficiency. Nor does this language suggest the stock awards were for work already performed.

As a result, Judge Mawla held that the trial judge misapplied his discretion because in the absence of any evidence or testimony to the contrary, he concluded the stock was earned for work performed during the marriage.  Judge Mawla rejected both the use of a coverture fraction or applying the concept of “marital momentum” to address the equitable distribution of the unvested stock awards noting, “In instances where an asset has been granted after the date of complaint, these principles are of little help because they presume a marital component attributable to the asset in question.” (emphasis added).

In determining how to divide such assets, Judge Mawla modified a mechanism found in a case out of Massachusetts.  Specifically, the court adopted the following rubric:

(1) Where a stock award has been made during the marriage and vests prior to the date of complaint it is subject to equitable distribution;

(2) Where an award is made during the marriage for work performed during the marriage, but becomes vested after the date of complaint, it too is subject to equitable distribution; and

(3) Where the award is made during the marriage, but vests following the date of complaint, there is a rebuttable presumption the award is subject to equitable distribution unless there is a material dispute of fact regarding whether the stock, either in whole or in part, is for future performance. The party seeking to exclude such assets from equitable distribution on such grounds bears the burden to prove the stock award was made for services performed outside of the marriage. That party must adduce objective evidence to prove the employer intended the stock to vest for future services and not as a form of deferred compensation attributable to the award date. Such objective evidence should include, but is not limited to, the following: testimony from the employed spouse; testimony of the employer’s representative; the stock plan; any employer correspondence to the employed spouse regarding the award; and the employed spouse’s stock plan statements from commencement of the award and nearest the date of complaint, along with the vesting schedule.

In this case, the court noted that the unvested stock was either in whole or in part unattributed to the marriage based upon the plan documents and testimony at trial.

But before people go too wild about this decision, and simply say that all non-vested deferred compensation is the property of the titled spouse, they should really go back to square one and look at the grant documents, because many, if not most, are not like those in M.G.  In fact, in an reported case last year entitled K.C. v. D.C., a review of the plan documents lead to an entirely different result.

Rejecting the husband’s argument about his post-complaint efforts being necessary to receive the deferred compensation, the court held that the RSUs awarded were “subject to equitable distribution and shall be equally divided,” observing defendant provided no evidence to support his theory that the award was for future performance.  Like in M.G., the generic purpose of the plan was:

to aid the Company . . . in recruiting, retaining and rewarding key employees . . . of outstanding ability and to motivate such employees . . . to exert their best efforts . . . by providing incentives through the granting of Awards. The Company expects that it will benefit from the added interest which such key employees . . . will have in the welfare of the Company as a result of their proprietary interest in the Company.

Different from M.G., however, is the fact that the employee would still get the deferred compensation if they died, became disabled, or were terminated through no fault of their own.  Put another way, no post-complaint efforts were specifically required.  Accordingly, the Court held:

Aside from the generalized aspiration that “key employees” who are granted RSUs will have an enhanced interest in the welfare of Accenture, there is no requirement that the employee meet any performance goals before a batch of RSUs will vest pursuant to the schedule. The only condition for vesting is “continued employment.” Moreover, in the event the employee is no longer employed due to death or disability, all of the RSUs granted, whether vested or not, are transferred to the employee or his estate. Obviously, the transfer of RSUs following death or disability would not be based on future performance.

In sum, all the documentary evidence in the record1 states that such promotional grants are awarded based on performance ratings at the time of the award, in recognition of employees’ efforts, and no document provided to the court states defendant must meet any given performance goal to trigger the vesting of RSUs that are part of the grant. Contrary to defendant’s argument, the record was clear, and fully supported the trial court’s determination that the RSUs were subject to equitable distribution.

So what is the takeaway here.  You need more than just a party’s self serving testimony.  You need the plan documents and the documents seemingly must really require post-divorce exemplary efforts more than just staying employed, in order to exempt the deferred compensation granted but not vested during the marriage.  M.G. does not address the necessary corollary which would be that if the deferred compensation is exempted from equitable distribution, should it not then be considered as income available to pay alimony when it vests?  Seems so but we shall see.

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