We have posted on this blog before about how to choose the right attorney for you, as recently as Eric Solotoff’s post of December 28th, but one related point worthy of discussion is whether your divorce lawyer actually knows what he or she is doing.  Seems easy enough, right?  Well, all too often a case may very well fall "off the rails" from both a time and cost standpoint because your lawyer may not know how to handle a divorce matter, despite what was indicated to you during your initial consult.

What are the potential pitfalls and perils of retaining a lawyer who does not have a strong grasp of family law and how to represent a client in such a matter?  There are many, but a few are notable for this blog entry:

Time Is Not On Your Side:  What may be a simple case drags on for what seems like years (or, in some cases, may actually be years), because your lawyer does not know how to bring such a case to conclusion.  This can cause fees to escalate unnecessarily.

Law?  I Don’t Need No Stinkin’ Law:  A lawyer who knows the law seems like a no brainer, but you would be surprised to know how many attorneys handling divorce matters do not actually know the applicable law, in even the most basic sense.  I recently experienced a trial judge having to pull out the Court Rules and point the other lawyer to the page of the Child Support Guidelines dealing with unreimbursed medical expenses because the lawyer was simply taking a position contrary to well known existing law.  Only after having this occur in front of her client, on the record, did the lawyer back down. 

Money, So They Say:  No one likes or wants to spend money on a divorce, but ultimately divorce lawyers provide a necessary service to clients, and are supposed to act zealously on a client’s behalf to protect rights and interests under the law.  When your lawyer does not know what he is doing, the, perhaps, unintended impact of the representation will be higher counsel fee payments than you may have anticipated.  In a way, this ties into what I said above about bringing a case to a conclusion.  Having a lawyer who knows the law, and can appropriately act on your behalf based on a given set of circumstances will avoid additional fees that could have been avoided had that unnecessary motion not been filed, that unreasonable position not been taken, or that lengthy research on basic points of law not been performed. 

Don’t Look Back in Anger:  Believe it or not, a lawyer who does not know what he is doing can increase acrimony between the parties.  As lawyers, we tend to let our clients know when we think that the other side is being unreasonable, or simply is leading the case off of the beaten path due to a lack of understanding as to what is happening, or how to move the case towards an end.  Clients also tend to have a strong grasp as to when this is happening, and the result is often added frustration or acrimony with the other party, who, in many cases, may believe that he or she is being properly represented.  With delays and increased counsel fees, the atmosphere surrounding the matter is only going to deteriorate with time.

Ultimately, choosing a qualified attorney requires a thorough and careful determination that the person can properly act on your behalf through what may be one of the more difficult times in your life.  This is not a decision that should be taken lightly, and I recommend that you review the steps in the prior entries on this blog to determine who is the right attorney for you. 

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.  

Reading the recently unpublished (not precedential) Appellate Division matter of Connaughton v. Connaughton  brought me back to my days of toiling as an account executive at an advertising agency in Manhattan. Our team often worked long hours and frequently traveled for client meetings, commercial shoots, and the like. 

Advertising also was and remains notorious for forcing account and creative executives to switch from agency to agency in order to make more money over time.  For instance, a person who just joined an agency may be making tens of thousands of dollars more than a similarly situated person who started with and remained at the same agency throughout their career for no other reason than that the newly hired person came from a different agency.

The income situation in Connaughton was interesting in that Brian’s historical income increased as he frequently switched jobs and moved up the proverbial ladder.  Similarly interesting was Elizabeth’s income growth, which stalled once she left the workforce and gave birth to the parties’ child.  Specifically, the parties married in 1995, and a year later, Brian obtained a job with J. Walter Thompson while Elizabeth commenced a period of freelance work that lasted throughout the remainder of the marriage. 

Continue Reading IMPUTATION OF INCOME IN THE WORLD OF ADVERTISING

We have all grappled with the fact that former spouses move, and oftentimes, a residential parent wants to take the children with her or him. While we have previously discussed the issue of removal in other posts, a recent decision discusses the issue of which court a parent must look to in the case of a problem after the move.

In the unreported decision ( non-precedential)  of Horton v. Horton, at the time of the parties’ divorce in 2008, the father agreed that the mother could move to South Carolina with the minor children. She relocated between the time of divorce, and 2010. Sometime thereafter, the father encountered difficulties in exercising his parenting rights and sought assistance from the courts in New Jersey.  Because it initially entered the custody determination, the Family Part could modify its determination so long as it retained what is known as exclusive, continuing jurisdiction.   The Horton court noted that only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence.

 

When the issue of whether custody type decisions should be moved to a different state arises, the focus becomes  which state has the most significant connection with the children. This includes access to information about the children, including school and health records, location of witnesses with current information about the children, and location of experts who may be involved with the children. A court also must focus on the relationship between the child and the parent remaining in the state.  When that relationship becomes too attenuated,  jurisdiction is lost.   In short, substantial evidence is needed of the children’s care, protection, training, and personal relationships within this state.

 

It was noted by the court in remanding to the trial level, in all likelihood, the children’s significant connections were in South Carolina. The lesson to be learned here is to be mindful of the fact that once a move occurs, the remaining parent will probably have to seek counsel or assistance in a state other than New Jersey in the event of an issue down the road.  This should be considered when negotiating a request to move.  Perhaps, you can demand that the agreement require that New Jersey retain jurisdiction and that the other party cannot ever seek to change jurisdiction if the left behind parent is still in New Jersey (though this may not be enforceable). 

I recently wrote a blog entitled "Sloppy Drafting of Marital Settlement Agreements Can Cause Great Harm, Usually to Only One of the Parties."   I am reminded why I wrote that post because as I read the new cases decided each day, it fortifies my belief that settlements must be clearly reduced to writing and that every effort should be made so that the document can only be interpreted in one possible way. I say this because as I read these cases and see the results based upon interpretations of agreements, I think that this could not be what the parties really intended.  

Specifically, two cases decided in the last two days jumped out at me and left me thinking "I see what the agreement says, but that really cannot be what the parties’ meant."

In Schaefer v. Kamery, an unreported (non-precedential) case decided on November 19, 2012, the holding of the trial court, that limited duration alimony continue even after the recipient remarried was upheld.  How can that be you ask since there is a statute (N.J.S.A. 2A:34-25) that says alimony terminates on remarriage?  How can that be you ask because you know that there is case law that says that rehabilitative alimony many continue after remarriage, because the rehabilitation plan is goal oriented (i.e. to get someone back in the workforce or improve their earning ability), which goal exists irrespective or remarriage.

The reason that alimony did not terminate on remarriage in this case is that the Property Settlement Agreement contained the following language:

Payment of alimony shall cease only upon the first to occur of: (1) the
expiration of the alimony term set forth above; (2) Husband’s death; or (3) Wife’s
death. The parties agree Wife’s involuntary termination from her current employer or
permanent disability preventing her continued employment shall be a changed
circumstance justifying review of Wife’s alimony obligation. No change in Husband’s
circumstances other than death shall constitute a changed circumstance affecting Husband’s right to alimony.

Part of the rationale for denying the motion was the aforementioned language and the fact that there may have been other interrelated financial terms.  Not also, the payor previously sought and was denied modification based upon cohabitation.  In fact, the current motion was the third motion to modify.

Having the benefit of 50-50 hindsight, unless someone was trying to pull a fast one and was planning on filing the motion because they knew that the support recipient was in a relationship, the better practice might have been to specifically say that remarriage and/or cohabitation would not impact the alimony, especially if there was not a real meeting of the minds on this issue.  Doing so may have saved the legal fees for 3 motions and an appeal.

Continue Reading Mean What You Say, Write What You Mean

Alimony is supposed to be decided based upon the statutory factors, right?  There really isn’t a formula to determine alimony, right?  Even if there is this formula that is used to get a ball park figure for a range of alimony, judge’s can’t use it, right?  So what happens when they do? 

We have blogged on the so called "rule of thumb" several times before.  In fact, we reported on one case last year that specifically said that a formula approach to determine alimony was impermissible.  On the other hand, we also blogged on another case last year where an expert in a legal malpractice case against a divorce lawyer based her opinion that the alimony was too low based upon this formula and the court found this a permissible opinion because the use of a formula was "widely accepted by the members of the matrimonial bar.

The use of the "formula" or "rule of thumb" was disfavored again this month in the case of Eick v. Eick, an unreported (non-precedential) decision from the Appellate Division.  Just as it did last year, the Appellate Division stopped short of saying that the trial judge actually used a formula.  However, the court held:

Plaintiff argues that the remand judge may have used an impermissible formula to determine the amount of alimony, rather than applying the factors required by N.J.S.A. 2A:34-23(b) to the facts shown by the evidence. He contends that the judge subtracted defendant’s annual income of $52,909 from his five-year average income of $94,6322 and then awarded defendant thirty-three percent of the resulting figure. This calculation appears to match the amount of alimony awarded by the judge in this case.

We decline to speculate whether the remand judge used such a formula. Nevertheless, as a general proposition, we agree with plaintiff that use of a percentage formula based only on the parties’ incomes is not authorized by law. Such a formula does not weigh and balance particular factors as listed in the statute and as might affect each individual case.

Just as in the case last year, the court was not precluded from coming to the number that the formula determined, but "… but require additional support in the record for its determination."  So with all of these cases, is the take away that you cannot use a formula, but if a court does, it should make factual findings supporting the amount ordered? 

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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.
 

Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina.  I had the occasion, last week, to read her excellent article on her blog entitled "How to Find the Right Divorce Attorney for You."  Melissa has graciously allowed us to re-post her post.  Her article is as follows: 

When your marriage is falling apart and a divorce is imminent, it is critical to find a skilled, experienced, competent family law attorney to represent your interests. With a little bit of legwork and some patience, you can find a highly experienced divorce attorney who is the “right fit” for you. The following three simple steps outline a basic approach to put your case in the hands of the right attorney.

Step 1: Ask Your Friends for Attorney Referrals
Begin by asking your divorced friends, family members, and trusted coworkers for their thoughts about the attorneys who represented them – and the attorney who represented their ex-spouse.

Do not simply ask “Did you like your attorney?” Dig a little deeper. Be specific. Ask questions such as:

• After your experience what is the most important quality to have in a divorce attorney?

• What did you like the most/least about your attorney?

• Did you feel the attorney listened to you?

• Did you feel your attorney advocated for you?

• What was your opinion about the opposing attorney? (Surprisingly, it is not uncommon for one to have high regard for the opposing side’s attorney. Asking detailed questions about the opposing counsel’s performance can be enlightening.)

• Did your legal fees reflect the value and quality of the legal services that you received?

Pay attention to others’ responses. Take note of which attorneys’ work was valued and appreciated by their clients and which attorneys were a disappointment. Make a list of the attorneys whose work was appreciated and respected because these are the attorneys with whom you need to meet, interview and consider retaining.

Continue Reading Read Melissa Brown's Informative Article Entitled "How to Find the Right Divorce Attorney for You"

Many marital settlement agreements provide that a payee spouse shall receive what is legally classified as "limited duration alimony" from the other spouse.  While not "permanent", alimony of a limited duration is designed for a situation where the payee spouse contributed to a generally short-term marriage where the marriage itself displayed indicia of a marital partnership, and the payee spouse has skills and education enabling him or her to return to the workforce.  LDA is oftentimes distinguished from other forms of alimony known as "reimbursement alimony" and "rehabilitative alimony," which are more tailored to facilitating the payee spouse’s ability to earn or to make that spouse whole for sacrifices made during the marriage. 

The question then becomes, for the purpose of this blog entry, can LDA be extended, especially where the term was agreed to in a settlement agreement.  N.J.S.A. 2A:34-23(c) allows for modification of the amount of LDA, but it also prohibits modification of the term of payment except in the case of the broadly termed "unusual circumstances." The Appellate Division recently took up this issue in the unpublished (not precedential) decision of Rothfeld v. Rothfeld.  There, the parties entered into a settlement agreement providing the Wife with four years of LDA, at $500 per week.  Also contained in the settlement agreement was the Wife’s representation that she would be able to continue the standard of living that she enjoyed during the marriage because, in addition to her alimony payments and assets received via equitable distribution, she was able to earn income.

Continue Reading Extending Limited Duration Alimony – Strong Proofs Required

Generally speaking, New Jersey statutes and court rules cloak settlement negotiations with secrecy (legally, called a “privilege”) such that what goes on in those proceedings are not evidential, that is, they are “privileged” from being disclosed to a court.

Somewhat of an exception arises in cases in which the negotiations produce an oral agreement. Let’s first deal with this in the context of settlement negotiations not in the mediation context. Usually, it happens this way: the parties are participating in a “4-way” settlement session in which each party is present (either physically or by phone), as is their attorneys. Through the negotiations, agreement is reached as to the basic provisions such that both parties walk away from the session thinking that they have reached a binding agreement, albeit oral, subject only to “finalizing” it by reducing it to writing (and filling in details that would normally expand the basic terms during the drafting process), approved by the attorneys, and signed by the parties. One of the parties then changes his or her mind before any written agreement is signed. The other party says “wait a minute, you can’t do that, we had an oral agreement. You can’t change your mind.” The party backing off of the arrangement says “but we did not have a full agreement. There were many terms and details still to be negotiated.”

Continue Reading Are Mediation Proceedings Really Sacred and Secret?

I had a case recently where we had a conference call with the judge during which time, a discrete issue holding up resolution of a larger issue was discussed.  The judge made a suggestion which I took down verbatim and drafted language which I thought would resolve the issue. The problem, the judge’s suggestion was contrary to what the other litigant wanted.  So what appeared to happen is that his lawyer either did not accurately report what was said or "spun" it in a way to not accurately reflect what the judge said.

In another matter, resolution of financial issues were discussed in chambers with the judge.  As I was reporting to my client what the judge said, we heard the other lawyer, who was speaking way to loud given as close as he was, spinning a entirely different client because the truth was not something the client would have wanted to hear.

Aside from running up counsel fees, seeking clarification from the judge (or hoping that she/he will change her/his mind), what purpose does this serve?  Is saving face with a client better than being honest, if not brutally honest, about their prospects?

I have heard many clients say that they went to initial consultations with attorneys who promised the world to get the case, only to then fail to deliver.  Of course they failed to deliver if they were promising that which is contrary to the law, overreaching or unreasonable under the circumstances. 

While clients have a right to seek what they want, they need to hear what they can realistically expect so that they are not surprised if they don’t get the result that they have hoped for.  There are parties that want to push the envelope, either because an issue is novel, or because they really want something but are willing to give up something else, and sometimes for un-pure reasons.  However, if they are fully informed of their chances, or what the judge is saying, or both, they will not be able to say,"you never told me." Moreover, it is better for a party to learn the truth as early as possible so that they can decide whether they really want to fight a losing fight or preserve their financial and emotional resources.

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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.

Though you don’t see them much anymore, some times Marital Settlement Agreement contained escalator clauses which, in effect, provided for automatic increases in alimony or child support.  Some times they were a fixed percentage per year. Other times they were tied to the cost of living/Consumer Price Index. 

In the unreported (non-precedential) case of Burroughs v. Burroughs released on August 9, 2010, the effects of a 5% annual increase on alimony escalator clause was at issue.  In this case, the agreed upon alimony was $200 per week and based upon the husband’s income of $60,000 at the time (1994).  The husband had comparable income until the year 2000 when he could no longer find same and went to work at Home Depot earning about half of what he made in the past.  In 2006, the alimony was increased to $337 per week, not due to a change of circumstances, but rather, by implementation of the escalator clause.  As an example why not to use such an escalator clause this reflects a 68.5% increase in support in about 10 years.

The husband’s income continued at the less than time of the divorce levels until about 2007, when he established a business with a friend to try to increase his income from what he was earning at Home Depot.  This was not a success.  He ultimately filed a motion to terminate or reduce his alimony.  The motion was denied.

The Appellate Division reversed holding that the husband had made a showing of a change of circumstances by virtue of his Social Security statement showing far lower wages post-2000 than his alimony was based upon.  The effect of the escalator clause was also impacted on the showing of a change of circumstances (though this is curious because it certainly is a foreseeable event.)

The matter was remanded for discovery and a plenary hearing.