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
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…
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…
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In Schaefer v. Kamery, an unreported (non-precedential) case decided on November 19, 2012, the holding of the trial court, that limited duration alimony continue even after the recipient remarried was upheld.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.
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…
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.
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.
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.”
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…
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…