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The long awaited decision in the Gnall case is being released tomorrow (7/29/15).  Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Interestingly, when we filed the brief, it was before the new alimony reform statute had passed.  While the amendments to the alimony statute might render this much ado about nothing, in any event, I am sure that the bar and the alimony reformers are interested in the outcome.

It will be interesting to see if tomorrow’s decision references the new statute and the justices’ feelings about it.

Stay tuned.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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We have an adversary who loves to say, when responding to motions that we have filed, that the best defense is a good offense.  He has even taking to giving official attribution to the person that came up with that line.   The gist of the statement is that our client is going on the attack to divert from his/her own wrong doing.  But really what it is is a tactic to create a smoke screen.  If permitted at argument, I was prepared with a few quotes of my own (“the lady doth protest too much, methinks”; and “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck” both came to mind.)

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That said, here’s how it works.  Parent #1 makes an allegation that the parent #2 interfered with parenting time.  Parent #2’s response goes something like this, “In response to the allegation that I interfered with Parent #1’s parenting time, ADD ATTACK AGAINST PARENTING #1 HERE THAT IN NO WAY ACTUALLY RESPONDS TO THE ALLEGATION.  Put another way, instead of specifically addressing the conduct that was alleged to have been perpetrated, just say what the other party did wrong – or worse, that the other party does it too – so it is justified or some in some way okay.  What you have here is what seems to be a denial, but it is really a non-denial or a some type of two wrongs make a right justification.

That is, until you point out, if you even have to, that the specific conduct was never denied.  Don’t assume that the judge is going to pick up on it – be prepared to point it out.  Be prepared to actually quote the specific response.  Judges expect parties to spin facts.  They don’t like to be lied to and don’t like it when parties or lawyers sidestep issues.  This happened just recently in a case and the judge made a point of saying that, when you read the papers carefully, this is the unusual case where the allegations really weren’t denied – just before she came down hard on the parties.

The bottom line is that quotes and other fancy tricks are great, except when the court actually cuts through the morass and realizes that you didn’t actually deny what was said.  Have fun then.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_lculig’>lculig / 123RF Stock Photo</a>

When meeting with a new client whose spouse has cheated on them, the anger, sadness, sense of loss and betrayal is often palpable.  They are quite often resolute that they can never get over their spouse’s indiscretion (though referring to it as an indiscretion seems to minimize it from the victim’s perspective), and proceeding to divorce is their only option in their mind. That said, the hardest thing telling this person is that the court is going to treat this betrayal with a big “so what.”  This is just “garden variety adultery” after all.  He can’t see the kids because cheated right?  Um, no.  She can’t get alimony because she cheated, right?No again in New Jersey but in other states, I understand that this penalty exists.  But the court has to punish him/her right?  No.  At the very least, since she/he lied, to me, the court won’t believe that she/he is credible, right?  Maybe, but probably not. So other than divorce – you can still seek fault based divoce based upon the adultery – that’s it?  In most cases, yes.

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The bottom line is that, about 10 years ago, our Supreme Court , in Mani v. Mani, reaffirmed that fault really does not matter when it comes to the financial issues unless the fault is “egregious.” There are very few examples tht one could think of as to what is actually agregious, but normal adultery won’t usually be considered egregious.

There is one caveat though.  If you can show that marital funds were used in furtherance of the affair, then perhaps you can get half of the money back. However, proving this is often an expensive undertaking.

The take away from this is that there is rarely a legal pound of flesh that you can obtain when your spouse cheats.  While I am sure that this feels unfair, that is the current state of the law.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.  At the time, I noted that:

When laws get changed, the preamble to the statute and/or the legislative history often tells you the perceived need for the change. As an example, when the palimony law, which we have blogged on numerous times before, changed a few years ago, the preamble of the amendment to the statute mentioned several palimony cases that the law sought to overturn. We have also blogged on the possible alimony reform movement. If the reform now passes, I would not be surprised if it is response to Gnall v. Gnall, a published (precedential) Appellate Division opinion decided on August 8, 2013.

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In any event, as we have previously noted, the Supreme Court agreed to hear the Gnall case, and that argument is scheduled for tomorrow – November 12, 2014. 

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Interestingly, when we filed the brief, it was before the new alimony reform statute had passed.  It will be interesting to see if that shapes tomorrow’s argument, and more particularly for the Gnalls, whether the new law or old law is to be used on the remand.  Moreover, given the new statute, does this opinion even matter anymore? 

Stay tuned. 

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_iqoncept’>iqoncept / 123RF Stock Photo</a>

Is it a court’s job to be “fair” or to get it right?  If you file a clear enforcement motion, should a court grant part of the other side’s knee jerk, bogus cross motion, just to give everyone a little something?  When deciding a temporary support amount, should the number be the right number, as opposed to one that will cause a problem for the judge because it will make a case harder to settle because the support is too much or too little – but not really if the circumstances really warrant it?  In a perfect world, the court is supposed to get it right, whether each party perceives the result to be fair or not.

The Law Book With Gavel On White Background Stock Photo Photo courtesy of freedigitalphotos.net

Another common theme in divorce cases is the question as to whether a court can restrain a parent from exposing the children to a new significant other.  The law is reasonably clear that while it may be possible before the judgment of divorce (though that notion and the case law are both old and oftened not enforced these days), after the divorce, it is much more difficult to get restraints.

These two concepts collided in the case of Krenicki v. Krenicki, an unreported (non-precedential) decision released today.  This case came to the court as a result of certain  post-judgment support issues which were interesting (and wrongly decided thus reversed), in an of themselves.  While awaiting a plenary hearing on those issues, the former husband filed an order to show cause requesting that his ex-wife cease cohabitating with her purported boyfriend, certifying that he had retained a private investigator who subsequently discovered that the boyfriend had been charged with, and served jail sentences for, several drug-related offenses.  The ex-wife provided a certification from the boyfriend stating that while he had problems in the past, he was rehabilitated.  On the return date, the ex-husband sought permanent restraints since the boyfriend’s record reflected five drug-related arrests and seven driving while intoxicated charges, two of which occurred after his purported rehabilitation.

I think we all can agree that it seems pretty clear that this is one of those rare occasions where post-divorce restraints seem appropriate.  The judge did just that, restraining the boyfriend from driving the children or being alone with them.  One could argue that greater restraints could have been imposed.

That said, the judge went a step further and asked if he was still seeing his girlfriend.  When he answered in the affirmative, the judge placed identical restraints on the girlfriend, though there was no suggestion that she had any issues.  In what appears to be frustration with one of both of the parties, the judge said:

I’m going to be fair.   She’s not going to drive the children either, and she’s not going to be alone with them because I’m going to be fair to both of you. You want to micro manage, I’m going to micro manage.

……………….

She [sic] will not drive the children, either. What’s fair is fair.  I don’t have any information on her. I didn’t order a report on her, but I’m concerned for these children so I have to be even-handed and fair.

Huh?  Restraints granted without any facts, much less fact finding?  Apparently the Appellate Division felt the same way as me because they reversed the restraints on the girlfriend, holding:

Here, the motion judge acknowledged that she possessed no information about S.S., but nevertheless ordered the restraints to appear “even-handed and fair.” While we recognize that “[t]here are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes,” Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982), the judge’s order was unsupported by
competent evidence and must be reversed. Cesare, supra, 154 N.J. at 412.

Whether the decision was rendered out of frustration or “fairness”, it was just wrong.  In fact, what was purportedly meant to be “fair” was not fair at all.  Identical restraints were placed upon a person with a significant substance abuse and criminal history and a person, who for all the court knew, had no history at all.  That is not fair; that is not justice.  And the husband can’t recover fees from the court, and unlikely from his ex-wife, for this serving of “fairness” that he got.

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Eric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

B.M. – that is before the Minkowitz decision that we previously blogged on (which lead to a second post on arbitration best practices), it was common practice at the start of an arbitration, just like it is common practice before the start of a trial, to take one last crack at trying a case.  Sometimes it even happens after some of the testimony has gone in, again, both at trial and at an arbitration.  As we learned from Minkowitz, that is now verboten unless the parties agree in advance and in writing that the arbitrator can also serve in a mediaiton/settlement role.

Solution Stock PhotoImage courtesy of freedigitalphotos.net.

Yesterday we learned that this applies to cases that were arbitrated before the Minkowitz case was decided.  Specifically, in N.L. v. V.M., an unreported (non-precedential) opinion, that is what occured, even though the court “recognized [sic] that the arbitrator’s ultimate rulings on the merits of the divorce issues do not
appear to have been manifestly lopsided, at least in terms of the parties’ respective litigation positions.”  The Appellate Division found that the wife “during the arbitration was extremely contentious and adversarial” and was “frequently unreasonable.”  In fact, the court noted that

we begin with a general observation that the conduct of the wife during the arbitration was extremely contentious and adversarial. On several occasions, the arbitrator was forced todeal with interruptions, non-responsive witness answers, and to rule on persistent objections.  The wife expressed open antipathy for the husband’s attorney. She was frequently rude, sarcastic, and argumentative during her testimony. For example, on one occasion, she told her husband’s attorney to “clean [his] ears” in response to a question that he posed to her on cross- examination.    In another illustrative instance, the wife referred to opposing counsel on the record as “the biggest jerk in the world” because he had sought her mother’s  testimony. The arbitrator commendably displayed considerable restraint and patience during the proceedings. That calm exercise of control over the proceedings should not be overlooked, in spite of the arbitrator’s two improvident efforts, which we discuss, infra, to resolve certain matters in a manner outside of his assigned role as arbitrator.

The Appellate Division rejected the wife’s claims that the arbitrator was unfair or biased. That said, because the process was corrupted by “well intentioned” attempts to resolve unrelated issues, the whole arbitration (which took 13 days) will have be re-done with a new arbitrator.

Just for context, the arbitration centered on some pretty standard equitable distribution issues and alimony where the husband’s income was a found to average $366,000 and the wife’s income was the equivalent of $24,000 and she had previously earned $60,000.  Again, this seems to be pretty garden variety stuff.

So what was the arbitrator’s big sin causing this reversal.

In one instance, the arbitrator suggested to the  wife that she consider voluntarily dismissing her pending municipal complaints alleging criminal conduct by the husband. In the other instance, the arbitratorplaced an ex parte telephone call to the wife, urging her to allow the children to be with their father on Father’s Day in accordance with the terms of a pendente lite parenting agreement.

The Court noted that there concerns about the wife’s municipal complaints potentially being used to gain leverage in the matrimonial case and the arbitrator had suggested that there were other ways to address those issues.

At the end of the day, the arbitrator, thinking he was acting in everyone’s best interests, strayed from his decision making role and now the parties have to start over.  As they say, no good deed goes unpunished.  Given the report of the wife’s conduct, maybe this is exactly what she wants.

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Eric 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 Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

For the last few years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Out of curiosity, I typed "New Years Resolution Divorce" into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

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

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

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

In the last 3 years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. Moreover, we have heard of more people telling their spouse it "is over" before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse. Whatever the reason, we await those who see 2013 as a chance for happiness or a fresh start. Happy New Year?!?!
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Eric 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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Matt Levitsky, an associate in our Montgomery County, Pennsylvania office wrote a guest blog for our fir’s Pennsylvania Family Law Blog entitled "Who Gets to Claim the child if there is 50/50 Custody?"

Matt’s post talks about the four prong test and the fact that at the end of the day, all other things being equal, the exemption would normally go to the parent with the higher adjusted gross income (AGI).  The piece also has an interesting discussion on whether a step-parent’s income is included in the AGI test.  I note that Sandra Fava has previously addressed the issue of the allocation of the dependency exemptions, in general, on this blog.

While this is an interesting technical discussion, often it does not come into play in post-divorce scenarios in New Jersey because, either the parties agree upon the allocation of exemptions (most often, blindly alternating it if there is an odd number of children or splitting them if there is an even number of children – whether this makes sense or not will be the subject of another blog post in the future) or a judge will simply allocate the exemptions in a similar fashion, regardless of what the IRS code would provide. 

In any event, Matt’s post was interesting reading and provides some guidance about what the proper result is when there is no agreement of the parties or decision by a court.

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Eric 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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

On Friday, I blogged on the judicial estoppel aspect of the Romano case decided last week by the Appellate Division. While that was the major issue in that case, there was another part of the case that jumped out at me, when I read this line related to the court’s valuation of the husband’s business and calculation:

John also maintains that Judge Becker should not have accepted Dana’s expert testimony with regard to the value of his business and the income it generates. John did not provide sufficient reliable information to allow Dana’s expert to use valuation techniques based on tax reporting, so the expert was forced to consider the family expenses as a means to gauge the income generated by the business.

This scenario is not uncommon in divorce matters where a sole proprietor provides neither complete business records nor reliable Internal Revenue Service filings. We defer to Judge Becker’s fact-findings concerning the value of the business and its revenue.  (Emphasis added).

Unfortunately, when dealing in cases with small (and some times not so small) businesses, this is a common occurrence.  Often, it becomes a game of "tell me how much you can find and I tell you how much I have."   In this case, the non-owner has the laboring oar to try to reconstruct the exact income.

Continue Reading Court Says Incomplete Records and Inaccurate Tax Filings from the Self Employed Common in Divorce

Once again, I find myself turning to the New York Post for some of the most interesting family law news.  This week, they got me again when they wrote about supermodel, Linda Evangelista’s request for $46,000 per month in child support for the son that she had with Francois-Henri Pinault (CEO of the conglomerate that owns Gucci, Yves St. Laurent and Bottega Veneta). 

The father, who is married to Salma Hayek, with whom he has a 3 year old daughter, for whom
he  shells out $50,000 a month for a $12 million Los Angeles estate held in trust in the girl’s name, while he has allegedly, has not paid a penny of support for the 4 year old boy.

Ms. Evangelista is seeking $175,000/year for armed security for the child and $80,000/year for a around the clock nanny. In fact, it was inferred in the story that she testified that she did not want to be alone with the child.

This is an interesting case of two parents who make substantial incomes.  It was reported that Evangelista earned $1.8 million herself last year and is worth $8 million.  Amusingly, when asked how many hours a week she worked by the judge, she answered in what was described as defensively:

On days when I do not work, I am working on my image. I have to hit the gym. I have beauty appointments. I have to work toward my next job and maintaining my image, just like an athlete.  When I work, it can be a 16-hour day

In New Jersey, there are child support guidelines, but in extreme income situations like this, the guidelines serve as a presumptive minimum, and then support is added based upon the child’s reasonable needs and opportunities that can be provided.  Children are entitled to share in their parents’ good fortune, within reason.  Often cited is a case which cites a case from Kansas suggesting that there is a "three pony rule", i.e. no child needs three ponies.  As was noted in the Michael Strahan case, the parents should have some say so that the children are not spoiled or overindulged.

We will report back when the Evangelista case is decided.

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Eric 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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.