I recently read a quote from Joseph Addison, an eighteenth century British author, which said, “Husband a lie, and trump it up in some extraordinary emergency.” It lead me to consider how family law attorneys categorize the notion of an emergency, often with a mixture of histrionics and hysteria, in contrast with how the rest of the world does.
 
In the world of family law, emergencies are governed almost exclusively by the filing of the well-conceived and ill-named Order to Show Cause. R. 4:52-1 of the New Jersey Court Rules governs the filing of an Order to Show Cause in most scenarios in Family Court, when we are seeking temporary restraints or injunctive relief. It addresses the standard for filing an emergent application, which we all know by heart by now is, that immediate and irreparable damage will probably result to a party or the parties’ child(ren), unless an Order is entered immediately.
 
As a former law clerk and current family law practitioner, I have a unique perspective on both the utilization and exploitation of the Order to Show Cause.  What was designed to ideally be filed judiciously and to address genuine emergencies is habitually used as a litigation tool to get our clients the instant gratification that they far too often seek. Fittingly enough, these applications filed to presumably accelerate a divorce proceeding often become the ultimate double-edged sword.

Continue Reading A Day That Will Live In Exigency: The (Over) Use Of the Order to Show Cause

We have done dozens of posts on this blog about alimony over the last 5 years.  Recent experiences have convinced me that it is time to get basics. Despite all of the cases that say that you can’t use a formula (the rule of thumb we have discussed previously on this blog), more and more, people are espousing a blind adherence to the rule of thumb.  In one recent case with income of a few hundred thousand, an adversary told me that it was the maximum amount of alimony that I can get, despite the fact that it came no where close to meeting my client’s already pared down budget.  In another case, where the income was a few million, one side was arguing that the rule of thumb was a minimum, as if there should be no consideration of any other factors.

Despite the calls for alimony reform and formulas, as we have said many times, courts deciding cases cannot use rules of thumb.  Even when they do, they can’t tell you that they did.  Rather, they have to review the alimony factors set forth in the statute – remember them?  Here, they are again, from N.J.S.A. 2A:34-23(b):

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant.

Continue Reading Alimony – Back to Basics