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. 

___________________________________

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). 

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? 

 _________

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.
 

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.

__________

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.

In 1988, the New Jersey Supreme Court ruled that a surrogacy contract was invalid based upon the circumstances of that case.  The Court found that such agreements are in direct conflict with existing statutes and in conflict with New Jersey public policy.  In the Baby M case, would-be parents entered into a contract with a women who agreed to supply the egg for in vitro fertilization, to implantation of the embryo and to carry the fetus to birth at which point the would-be parents would adopt the baby.  However, the surrogate mother changed her mind after the birth of the child and would not agree to the adoption.   The Baby M decision made it clear that New Jersey courts disfavor surrogacy agreements especially those involving monetary exchange. 

The Baby M case involved a surrogacy agreement by a surrogate who was also the biological donor of the egg.  Since the 1988 Baby M decision, the question of whether or not surrogacy agreements are invalid regardless of whether or not the surrogate mother has biological relations to the child has never been answered.  However, recently, on December 23, 2009, a trial Court in Hudson County entered a decision in the A.G.R. v. D.R.H. and S.H. case finding that surrogacy agreements in New Jersey are invalid regardless of the biological relationship of the surrogate mother.

Continue Reading Baby M Decision and Validity of Surrogacy Contracts Revisited

Previously we have blogged on the Crespo case.  In this case, the trial court determined that the Prevention of Domestic VIolence Act was unconstitutional. The Appellate Division reversed this decision in June finding the statute constitutional.

The Supreme Court will be hearing oral argument on the issue today.  As a result, the final say on this issue will be coming soon.  Stay tuned. 

Last week news broke the Jon and Kate Gossellin, stars of the Lifetime television program “Jon and Kate Plus Eight,” were divorced in Pennsylvania. Judge Arthur Tilson entered an Order making it official.  To read previous blog entries on this celebrity divorce click here.

While many news articles reported that the couple used an arbitrator, few actually differentiated or explained the roll of the arbitrator. Sometimes divorcing couples use an arbitrator to decide issues in a divorce rather than go to the Court. While in New Jersey only a Judge can enter an Order actually divorcing a couple – hence dissolving the marriage, an arbitrator can decide almost any other issue, including alimony, child support, equitable distribution, college expenses, graduate school costs, medical expenses, counsel fees and tax-related issues. (The only caveat is that both parties must agree that the arbitrator has the authority to decide the issue.)

In NJ when it comes to custody and parenting time arbitration, there are specific requirements for this process that our Supreme Court has set forth in the Fawzy v. Fawzy matter. To read prior blog entries on this case and arbitration, click here or here.

Continue Reading Jon & Kate – Arbitrate!