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It is not unusual for parties to address their children’s college education in their Marital Settlement Agreements.  If children are college age or close, parties may actually specifically determine the percentages that they will pay for college costs (including pre-college costs such as SAT/ACT preparation, application fees, etc.)  If the children are younger, parties often acknowledge their responsibilities and define the types of things will be covered, but defer the determination of their actual percentage shares until the children are in their senior year of high school.  Very often, the agreement will provide that the children are required to apply for all available financial aid, grants and loans.  Since student loans may be easy to obtain to fund the vast majority of college, at times, parties may limit the loans that they are going to force their children to take to subsidized student loans (e.g. Stafford, Perkins) which are limited vs. private loans where they could borrow vast sums.  But if college is a part of support of children in New Jersey, at least children of divorced parents or never married parents (vs. children of intact families that don’t seem to have the same rights), can they be forced to take loans to pay for an obligation that is supposed to be their parents’ obligation?

The issue of student loans was one of the issues addressed in the unreported (non-precedential) Appellate Division opinion in the case of M.F.W. v. G.O. decided today.  In this case, the parties divorced in 2003 when their daughter was 5 years old.  Their settlement included an agreement to pay for college and also had the typical language requiring that the child, “… “shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.”  When it became time for the child to go to college, in this case Georgetown, at a cost of more than $66,000 per year, the mother sought the father’s contribution for both college and pre-college costs.  When the issue wasn’t resolved, an enforcement motion was filed.  One of the father’s defenses was that the daughter should have been required to obtain loans.  It should be noted that the father’s net yearly income increased from approximately $80,000 per year at the time of the divorce to approximately $217,000 at the time of the motion.

The trial judge rejected the father’s request to enforce the agreement and require the daughter to seek student loans, finding it to be “repugnant.”  As noted by the Appellate Division:

The court found it was “unfair and unjust” to require Jane to apply for “all loans, grants, aid and scholarships available to her” and to apply them first to the college costs because Jane “should not be bound to a contract which she is not a party to” and because the parents “have a legal obligation to support” her “and cannot compromise that obligation even if they both agree.” The court found this provision of the PSA is “repugnant and will not be enforced.”

That is an interesting holding because I have seen these clauses enforced all of the time.  Seemingly, this is because the court found that “the parties have the financial wherewithal to meet all of their daughter’s financial needs for college.”  But many times I have seen this provision in agreements where the parties seemingly have the financial wherewithal though sometimes I shake my head because unless parties have saved substantially for college, most people can’t afford to pay for college out of income, even at the income levels in this case.  Moreover, some people of means include these clauses because one or both believes that the children need to have “skin in the game”, or because their parents didn’t pay for their education, or for any other reason.  As noted above, if parents of means in an intact family make their child take out loans for college, that is their prerogative and the children probably have no recourse.

Back to M.F.W., the father appealed arguing, among other things not germane to this post, that the trial court should have enforced the parties’ agreement regarding loans and the Appellate Division affirmed the decision.  With regard to the student loan issue, the Appellate Division noted that agreements are usually enforced and should not be disturbed, unless there is a change of circumstances.  You get the sense that the court was inferring that this is what the trial judge meant in his decision, assuming it was not specifically stated as such.  The change of circumstances was the parties increased income.  Accordingly, they held that

The court found “unfair and unjust” the provision that required Jane to apply for loans and financial aid because it was the parents’ obligation to pay for college and they had the ability to do so. Defendant acknowledged that “[t]he parties both have significant financial resources and can afford to send their daughter to Georgetown University.”  The court did not err by not enforcing this provision.

…

We cannot say, given the parties’ incomes, that the court erred by not requiring Jane to obtain loans or other financial aid where she would be financially obligated to repay the funds in the future. Her parents had agreed to pay for her college expenses under the PSA. This would include any loans to pay those expenses.

There appears to be a contradiction here.  Was the loan requirement eviscerated because of the parties’ increased income or because the parties agreed to pay for college and that this would include loans?  The latter suggests that it was intended that the agreement to pay for college included the agreement to pay for the loans that the child was going to be required to pay.  That certainly is not the standard practice.  Moreover, if the court is interpreting the agreement in that way, then there would not be a change of circumstances because they are interpreting the agreement to pay for college to also be an agreement to pay loans too.

Left unsettled by this case is (1) whether you can make your kids take out loans and if so (2) whether that agreement means that you have to pay for the loans your children take out if you agree to pay for college.   If nothing else, though not precedential, this case provides ammunition to parents seeking to compel the other parent to pay for college, whether or not their Agreement requires that the children take out loans.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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It may seem counter-intuitive, but the month of Saint Valentine is also generally the month that sees the highest volume of filing for divorce.  For some people, getting divorced may be their New Years Resolution.  Others wait until the start of the new year so that they can have one last holiday season with their families as usual.  Whatever the reason, many people find themselves at the beginning of the divorce process on Valentines Day.

We all know that there are any number of ballads and love songs out there that celebrate the romance of a happy relationship, and no doubt the airwaves will be filled with them today.  But you don’t want to listen to those songs if you find yourself at the start of a divorce, or even in the thick of one, this Valentines Day.  Instead, have a listen to the following anti-Valentines Day playlist and take a cue from these songs about how to approach your own divorce case:

What’s Love Got to Do With It? by Tina Turner:  When it comes to the divorce, love has nothing to do with it.  Of course, divorce can come with emotional turmoil and it is important to deal with this, perhaps with the help of a qualified therapist.  But it is helpful to consider the divorce itself as a business deal.  How are we going to wrap up and distribute the assets and debts of the marriage (otherwise known as Equitable Distribution)?  How are we going to re-distribute the division of labor (Custody and Parenting Time)?  How are we going to make sure the parties to the marriage are fairly supported in the future (Alimony)?  If possible, leave the emotion at the door, and think practically.

Do You Really Want to Hurt Me?  by Culture Club:  Ask yourself:  Are you taking a position or engaging in conduct just to hurt your spouse? Do you really want to do that?  Sometimes, you do.  We are all human, after all.  But a case driven by vengefulness and anger is not one that is likely to resolve, or resolve quickly.  And when you have spent money in legal fees because of a hurtful, non-meritorious position that went nowhere, you’re probably going to wish you had taken a different tack.  That’s not to say that you shouldn’t take a tough position – you should when the position is merited – but there is no point in being hurtful just to thumb your nose at your ex.

No Scrubs by TLC:  While the ladies of TLC were complaining about the obnoxious men in their lives…both men and women can be scrubs.  Don’t sit around talking about how you want your case to be resolved or what you think you or your ex deserve.  Instead, work towards a resolution.  Cooperate with your attorney and provide needed documents in a timely manner.  Take reasonable, and justifiable, positions.  Come to the table with ideas about how to move forward instead of focusing on the past.  If you are a proactive participant in your divorce, you will feel more empowered and comfortable with your case and the result.

I Want It All – Queen:  Many times, clients “want it all, and [they] want it now.”  Unfortunately, in most cases, you can’t have it all.  Neither can your spouse.  Cases settle based on compromises that leave everyone feeling like they won a little and lost a little.  When cases go to trial because they cannot be settled, nobody gets everything they want from the judge either.  When preparing for a divorce and beginning settlement conversations, it’s important to prioritize your goals and know what you are willing to give up to achieve your top priorities, because you are unlikely to get every single thing you want.

Cry Me a River by Justin Timberlake:  Simply put – this is what you’re going to tell your ex when they are complaining about how long the divorce is taking, or why you’re being unreasonable, or why can’t they have the dog, and so on and so forth.

Poison by Bell Biv Devoe:  Don’t let your divorce poison everything else around you and every other aspect of your life.  While divorce can feel all-consuming and scary, don’t let it run everything else you do, and don’t tell everyone who will listen about the nitty gritty details, as this is never appropriate.

Don’t Speak by No Doubt:  I am all for clients who can talk to one another and work out some of their differences amicably.  But sometimes, it’s better to say nothing at all.  You don’t want to commit to part of a deal in piecemeal, or make your spouse think that you are more or less committed to a position than you really are.  If you can’t speak honestly or productively with your spouse (and let’s face it, many people are getting divorced for that very reason), then it’s better not to speak to them at all without counsel present.

The Long and Winding Road by the Beatles:  Divorce can be a long and winding road, indeed.  While there will be ups and downs, left turns and sudden stops and starts, with the help of an attorney and a support system, you will come to the end and hopefully feel that the result is fair and equitable to both you and your spouse.

You Can Go Your Own Way by Fleetwood Mac:  I find that many clients have a hard time finding their voice and developing their own opinions.  In some cases, they are still highly influenced by their husband or wife and, oddly, inclined to listen to them even though they are in an adversarial role.  In other cases, clients may be listening to their friends about their divorces.  Whatever the reason, trust that your attorney is looking out for your best interests and will strive for your best outcome even if it’s not what your spouse thinks is right or what your friends experienced.

Stronger by Britney Spears:  Remember that what doesn’t kill you makes you stronger.  Hopefully, at the end of your divorce, you will walk away feeling like you got most of what you want, you’re stronger today than you were yesterday, and you can move on with your life better than you led it before you started the process.

Whatever you’re listening to this year, Don’t Stop Believin’ that You Will Survive if you just have some Patience and Try a Little Tenderness … okay, I’ll stop now.  Here’s hoping you hit up a different, more festive playlist next Valentine’s Day.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Our partner in our Chester County, Pennsylvania office, Mark Ashton, just wrote an interesting piece on our Pennsylvania Family Law Blog entitled “”Tis the Season”  about how the time between November 1st and the end of the year used to be the quiet time for new matters and how he has found that this year has been different.  We have found that to be the case, as well, as noted below.

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That said, for many divorce attorneys, the busy season starts after the first of the year. 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, updated slightly for the new year.

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 several 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. This year, the calls started in November at a pace more robust than in prior years.  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 2017 as a chance for happiness or a fresh start. Happy New Year?!?!

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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

Cersei Lannister may seem like she has it all: unbridled brutality, a mountain of a protector, disfavor in the Realm and a growing list of enemies she’s collected along the way. After all, she’s just destroyed her enemies in one fell swoop as she blew up the Great Sept of Baelor. Although Cersei seemed to have finally served her sweet revenge, she comes to discover that bittersweet aftertaste that just won’t quit.

Cersei soon found out that the fleeting rush she got from all the carnage and destruction (just a few of her favorite things) gave way to a mixed bag of emotions; on the one hand she finally got her seat on the Iron Throne, but on the other hand, she had lost all of her children in the process.

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HBO.com

Apparently, Cersei’s conflicted feelings on the subject of revenge are not unique to her.
A recent study in the upcoming edition of the Journal of Experimental Social Psychology found that the emotional consequences of revenge “are a mixed bag, in that we feel both good and bad when we take revenge on another party.”

Take the good: we love revenge because we punish the offending party. Apparently, the brain areas in charge of making crime and punishment judgments overlap with areas that process reward, which explains the pleasure in punishment/ revenge.

But then there’s the bad: it reminds us of the original act. To put that kind of pain it in context, think about the revenge your stomach exacts the morning after you eat an entire pizza. We’ve all been there.

In fact, just ask anyone who has slashed their cheating ex’s tires. Or take the story recounted by Marylin Stowe, one of England’s top divorce lawyers: Lady Graham Moon has gone down in English family law history for acting like a milkman, except that she was delivering to her neighbors the contents of her estranged husband’s valuable wine cellar.

The act of revenge may feel good in the moment, but soon thereafter, people are reminded of how they felt to have evoked the desire for revenge to begin with.

The stakes become even higher when that cheating ex and you share children together. Indeed, the Journal of Experimental Social Psychology study found that feelings of revenge support endless cycles of retribution that may emerge in the context of conflicts between families. And we all know how that can turn out for parents and children alike.

So take a page out of the book of Cersei, the Queen of Family Dysfunction, and now, the Seven Kingdoms. She should have listed to Mark Twain who said: “Therein lies the defect of revenge: it’s all in the anticipation; the thing itself is a pain, not a pleasure; at least the pain is the biggest end of it.”
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Eliana Baer, Associate, Fox Rothschild LLPEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

A recent unpublished decision, Strunck v. Figueroa, serves as a not-so-gentle reminder that sometimes an enforcement application can be “too little, too late,” and that it is imperative to be proactive to protect your rights under a divorce decree or agreement, especially when your adversary acts in bad faith.  In Strunck, a 2011 divorce decree awarded the plaintiff $23,369, which was to be transferred from the defendant’s retirement account.  Before the plaintiff could act to collect the $23,369, however, the defendant withdrew the money from the retirement account.  In fact, the funds were withdrawn by the defendant before the divorce decree was entered, and the defendant did not disclose this.

Any family law attorneys out there may be thinking that this is an “easy” enforcement motion given there was a clear violation of the decree and an obvious bad faith attempt to shortchange the plaintiff his $23,369.  And that may have been true but for what happened next.

The defendant in Strunck didn’t just keep the money and go on her merry way.  About four months after the entry of the divorce decree, she filed for bankruptcy and, significantly, listed the plaintiff as a creditor with a claim of $23,269 incurred as a result of the August 2011 divorce decree.  The plaintiff was appropriately notified of the bankruptcy petition and the inclusion of the $23,369 as an unsecured claim in that petition.  He sought the counsel of a bankruptcy attorney, and claimed that the bankruptcy attorney told him not to pursue legal action against the defendant.  If the plaintiff is to be believed in this regard, then, incredibly, the bankruptcy attorney failed to advise him that the Federal Rules of Bankruptcy Procedure, Rule 4004(b), allow a creditor to contest the dischargeability of a debt by filing “a complaint . . . objecting to the debtor’s discharge . . . no later than 60 days after the first date set for the meeting of creditors under section 341(a)” or as extended by the Court.  In other words, the plaintiff had the opportunity to contest the discharge of the debt the defendant owed him in the amount of $23,369, but did nothing to prevent the discharge of the debt.  As a result of his failure to contest it, the debt was discharged by the Bankruptcy Court.

Despite doing nothing to contest the bankruptcy petition in December 2011, the plaintiff filed a complaint against the defendant in the Law Division in July 2013.  By this time, over a year had passed after the debt was discharged.  The complaint was dismissed.  Not finding any relief in the Law Division, the plaintiff then filed a motion to enforce the divorce decree in the Family Division.  Apparently ignoring the fact that the debt had already been discharged, the plaintiff argued that the debt COULDN’T be discharged.  He argued that the defendant made a false statement on her bankruptcy petition when she alleged that she was not “holding the property of another.”  The plaintiff contended that, actually, she was holding his property, or the $23,369 that should have been his under the divorce decree…even though the debt to him no longer existed…because it had been discharged…because of his failure to contest the bankruptcy petition.  The plaintiff’s application was denied (actually, it was denied twice; not accepting the Court’s decision, the plaintiff re-filed his application a second time and the Family Court denied it a second time).

As the Appellate Division succinctly put it:  “Plaintiff’s argument rests upon the flawed premise that he could utterly ignore the bankruptcy proceeding and pursue the funds awarded to him in the divorce decree through enforcement proceedings in the family court.”  The Appellate Division reasoned that the plaintiff ignored his recourse to do anything about the bankruptcy proceeding, and he can’t now enforce a debt that was discharged.  It was simply too little, too late.

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In this case, try as the plaintiff might, he could not win given his failure to preserve the debt.  Had the plaintiff contested the bankruptcy petition when he was notified of it, he may not only have been able to get the $23,369 he was owed, but perhaps could have obtained sanctions against the defendant for her bad faith theft of the money.  The lesson here is that it is important to proactively preserve your rights under a divorce decree or agreement; it is not enough to later say that you were owed money or that something should have been done pursuant to the agreement, when you ignored your earlier recourse to preserve your rights.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

The recent Appellate Division case of Sirigotis v. Sirigotis, although unpublished (non- precedential), provides a great reminder of how important it is to know the “rules of engagement”.

In Sirigotis, the parties were able to resolve a majority of their issues by consent but agreed to submit the remaining unresolved issues to “final and binding” arbitration to be conduct by a retired judge. The parties provided the arbitrator a list of open issues that were to be decided.

The parties agreed to the appropriate amount of base alimony but a remaining open issue was that wife had an additional claim for alimony should husband’s income rise over a certain level as well as the inclusion of specific language in the award regarding plaintiff not being able to maintain the standard of living Crews v. Crews. Husband had objected to both of these requests.   During one of many arbitration sessions, the arbitrator had initially indicated that “all Crews [language] is out” because the issue of the determination of the marital lifestyle was not “before him”. Notwithstanding, in a later submission from wife, she again raised the issue of additional alimony on the grounds that the base alimony would not neither meet her needs or the marital lifestyle.  Husband’s submission argued that no additional alimony should be paid as the base alimony would “without question” meet wife’s needs and exceeds the marital lifestyle. Moreover, Husband requested that language be inserted that specifically indicated that both parties would be able to maintain a lifestyle reasonably comparable to that enjoyed during the marriage.

The reasons the parties were at odds over this language is because the standard of living and the likelihood that each party can maintain a reasonably comparable standard of living is a factor that must be considered when awarding alimony. This factor is of import because it serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when ‘changed circumstances’ are asserted.

Ultimately, the arbitrator denied wife’s request to predicate more alimony based on a “future event” (increased income) and left wife to make an application to the Court in the future if necessary. The arbitrator also agreed with the husband that wife could maintain the standard of living.

Once the final arbitration award was issued, the wife moved to vacate the arbitration award in the trial court asserting that the arbitrator exceeded his authority by addressing the standard of living issue. Although the trial court found that the arbitrator had the authority to address the issue, the court ultimately vacated the arbitrator’s Crews finding and remanded for further proceedings, finding that plaintiff did not have the opportunity to give all her proofs on the issue.  Both parties appealed.

The Appellate Division found the trial court erred in vacating the Crews finding and reversed and remanded to the trial court to confirm the arbitrator’s award. In doing so, it reminded us that arbitration awards are given considerable deference therefore the party seeking to vacate it bears a heavy burden, with the scope of review being narrow.

While arbitration is ‘creature of contract’ and an arbitrator exceeds his or her authority if they decide something outside the scope, the Appellate Division found that be virtue of the issues raised by the wife herself, the Crews issue had to be decided. Moreover, the Appellate Division found that the wife had ample time and ability to present evidence on this issue and indeed did so by virtue of oral testimony, written submissions and voluminous exhibits.

The take away from this case is regardless of whether you decide to mediate, arbitrate or litigate, some or all of your divorce, it is important to know the “rules of engagement”. It is imperative to engage an experienced professional to help guide you through the ins-and-outs. You do not want to find yourself at a disadvantage simply because you were not aware of the rules.

In the recent case O’Hara v. Estate of John B. O’Hara, Jr., the Appellate Division reminded us that even though the death of a party to a marriage ends that marriage, it doesn’t always end the divorce.  In Carr v. Carr, 120 N.J. 330 (1990), our Court examined what happens in the event that a party dies mid-divorce – after the Complaint has been filed, but before the divorce is finalized.  You might think that when this happens, the case simply ends – after all, if one party passes away, what is the point of the divorce?

For better or worse, things aren’t so simple.  If a party passes away mid-divorce, then the intent to divorce and to no longer be married has been expressed.  If one party’s death mid-divorce would lead to unjust enrichment for either the deceased party’s estate or for the surviving spouse, the Court must see the divorce through.  Otherwise, the surviving party might be unjustly enriched; what if he or she were to inherit everything in the deceased spouse’s estate, when the deceased party may not have wanted that?  The converse could also be true.  What if the spouse had specifically been provided for in a will, despite the divorce, but the bequest affords the surviving spouse less than (s)he would have gotten in the divorce case?

That latter is the issue at the center of O’Hara, where, in the midst of the divorce matter, the husband passed away.  While the divorce was pending, but prior to his death, the husband executed a Last Will & Testament.  The Will left the wife without any property interest in the marital assets, but created a trust for her benefit and support.  The problem with this was that, in filing a Complaint for Divorce, the Wife had asserted her right to an equitable share of the marital assets.  The trial judge permitted her to see that through by amending her complaint to include a claim against the husband’s estate.  The Court concluded that  “[w]ithout allowing the matrimonial matter to proceed to determine the value of the parties’ assets and what is available per equitable distribution, it will never be clear whether [the wife] received everything under the trust to which she is entitled, via equitable distribution.”

 

division of property

The Appellate Division affirmed.  Skeptical of the husband, the Appellate Division found that the marital estate had to be valued, and the wife’s equitable interest had to be determined before it could be said that the benefits to the wife under the trust established by the husband did not deprive her of what she would have been entitled to under the divorce.  Therefore, the lower court’s decision to impose a constructive trust – to effectively freeze the estate – was upheld and despite the death of one of the parties, the divorce litigation set to continue.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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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 several 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 2015 as a chance for happiness or a fresh start. Happy New Year?!?!

_______________________________________________________

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.

 

On September 9, 2015, the Appellate Division determined in  a reported (precedential) decision, N.T.B. v. D.D.B. (A-4542-13T2), that a spouse’s destruction of a door within the couple’s jointly-owned marital home constitutes the predicate act of “criminal mischief,” pursuant to N.J.S.A. 2C:17-3, thereby supporting a finding of an act of domestic violence.

Background

The parties, husband, N.T.B., and wife, D.D.B., married in 2012 and had one (1) child, an eight (8) year old daughter. The parties resided together with their daughter in a home they purchased during their marriage and owned as tenants by the entirety (i.e. jointly owned as husband and wife).

In December 2013, N.T.B. filed for divorce, and as of March 2014, the parties were sleeping in separate bedrooms within the home. On March 30, 2014, D.D.B. was listening to music in her bedroom alone when N.T.B. told her to lower the volume. When D.D.B. refused to lower the volume, N.T.B. poured juice onto the speakers in an effort to silence them. When that did not work, he ripped the speakers out of the wall, brought them into the bathroom and threw them into the toilet.

The following evening, the parties engaged in an argument in the living room. D.D.B. and the parties’ daughter went inside D.D.B.’s bedroom and locked the door. Plaintiff attempted to open the door and when he realized that it was locked, he broke the door open “by slamming his body against it, splintering the door frame in the process.” After N.T.B. broke the door open, D.D.B. maintained that N.T.B. prevented her from leaving the bedroom, so she slapped him in the face in order to leave. N.T.B. maintained that he never prevented D.D.B. from leaving the room and that she punched him in the face without provocation.

The parties filed cross-complaints each seeking a Final Restraining Order (FRO) against the other. This wasn’t the first time the parties had been involved in a domestic disputes as prior to their marriage, N.T.B. previously obtained a Temporary Restraining Order (TRO) against D.D.B after she burned him with a curling iron.

D.D.B.’s complaint alleged that N.T.B.’s actions constituted both the predicate acts of criminal mischief (N.J.S.A. 2C:17-3) and harassment (N.J.S.A. 2C:33-4), thereby warranting an entry of an FRO against him. N.T.B.’s complaint alleged that D.D.B.’s action of striking him constituted the predicate act of simple assault (N.J.S.A. 2C:12-1).

The trial Judge determined that D.D.B. did not establish either predicate act and denied her request for an FRO. With regard to criminal mischief, the trial Judge concluded that D.D.B. failed to establish that N.T.B. damaged “the property of another” as required by the statute, because “the speakers and bedroom door [were] within the martial home that is shared by the parties, both appearing to be marital property,” The trial judge further held that D.D.B. failed to establish any of the elements constituting harassment.

Under N.J.S.A. 2C:17-3(a)(1), a person is guilty of criminal mischief if he “purposely or knowingly damages tangible property of another…” The trial Judge reasoned that since “the statute does not prohibit a person from causing damage to their own property”, D.D.B. failed to show that N.T.B. committed an act against the tangible property of another, thereby preluding a finding of criminal mischief.

D.D.B. appealed both the trial court’s decision that N.T.B.’s destruction of the speakers did not amount to criminal mischief and that N.T.B.’s conduct was insufficient to establish harassment (among other things); however, she did not challenge the trial Judge’s determination that the destruction of the bedroom door did not amount to criminal mischief and the Appellate Division chose to address this issue on its own accord.

With regard to N.T.B.’s destruction of D.D.B.’s bedroom door, the Appellate panel observed that the parties acquired the home during their marriage as tenants by the entirety.

A tenancy by the entirety allows spouses to jointly own property together as husband and wife, but neither they, nor their creditors, have the right to attach, encumber, convey or transfers their interest. A tenancy by the entirety includes a right of survivorship, so that upon the death of one spouse, the remaining spouse inherits the whole of the property. Therefore, under a tenancy by the entirety, each spouse owns an undivided interest in the whole of the property.

A tenancy by the entirety differs from ownership as tenants in common. Under a tenancy in common, all tenants have an individual, undivided ownership interest, which they may transfer, convey, encumber, etc.

The Appellate Court concluded that while “each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses”, “each co-tenant has a separate and distinct freehold title and each holds his or her title and interest independently of the others.” In light of this, the Appellate Division determined that N.T.B. and D.D.B. each held a separate and distinct interest in their home and therefore, N.T.B.’s act of breaking down D.D.B’s bedroom door did in fact destroy the “property of another” (due to D.D.B.’s undivided interest in the home) and he therefore committed the predicate act of criminal mischief.

The Appellate Division opined that to conclude otherwise would “permit a spouse to purposely and maliciously totally destroy his or her jointly owned marital home, without sanction, leaving no recourse for the innocent spouse to secure an FRO on the basis of the home’s ruin.”

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The Appellate Division further disagreed with the trial court’s conclusion that N.T.B.’s act of pouring juice on D.D.B.’s speakers, ripping them out of the wall and throwing them in the toilet did not establish criminal mischief through damage to the “property of another”.

The Appellate panel noted that D.D.B. testified that the speakers belonged to her and were kept in her bedroom, while N.T.B. testified that the speakers were marital property since they were purchased during the marriage and were located inside of the home. However, the trial court did not engage in any analysis to determine whether the speakers were the “property of another” for the purpose of the criminal mischief statute.

The Appellate Division instructed the trial judge on remand to “make specific factual findings as to when, how and by whom, [the speakers] were purchased, for the purpose of determining whether [N.T.B.] enjoyed any tangible proprietary interest in them.”

To assist the trial judge on remand, the Appellate Division even went so far as stating that they “disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” To support this conclusion, the Appellate Court cited N.J.S.A. 46:3-17.2, “which recognizes the establishment of a tenancy by the entirety in personal, as well as real property.” This statute requires that “for acquired personalty to be considered joint property held by the entirety, the spouses must “take title to an interest [therein]…under a written instrument designating both of their names as husband and wife.” N.J.S.A. 46:3-17.2(a). “Absent evidence of such an instrument, the common-law prohibition against personal property being held by the entirety prevails.”

Parting Words

Does this decision intend to reach out from the realm of domestic violence law into the sphere of equitable distribution? Matrimonial attorneys routinely divide assets, real property, personalty, etc. based upon the presumption that same were acquired during the marriage, with marital funds, thereby making them “joint marital assets” regardless of title. It appears from the holding in N.T.B. v. D.D.B. that unless there is an instrument designating property as joint, all property acquired during a marriage, with marital funds, would purportedly belong to the possessory owner. Of course, as the trial judge was instructed on remand, specific findings must be made to determine whether another has a proprietary interest in the property. I can’t help but wonder how this decision may change the landscape of equitable distribution of marital assets.

Unless you’ve been living under a rock these past few days, you have undoubtedly heard about the Calgary couple that used their divorce as an opportunity to nab a quick selfie.

Shannon and Chris Neumann looked like they were beaming as they exited the courthouse on August 27, 2015, just after filing for divorce.

divorce selfie

In the caption, Shannon explained that the couple had done something “extraordinary”:

“We have respectfully, thoughtfully and honourably ended our marriage in a way that will allow us to go forward as parenting partners for our children, the perfect reason that this always WAS meant to be, so they will never have to choose.”

“They’ll never have to wonder which side of the auditorium to run to after their Christmas concert or spring play, because we’ll be sitting together. They won’t have to struggle with their own wedding planning because we’ll be sitting on the same side of the aisle – THEIR side.”

In the days that followed the post went viral.  The couple has been receiving numerous accolades for being “inspiring”, with headlines like “Couple Posts Divorce Selfie with Inspiring Message” and “The excellent reason this ‘divorce selfie’ is going viral”.

But the divorce lawyer in me is just not truly convinced.  To be clear, I think that the Neumanns have the best of intentions; intentions to live a harmonious lifestyle post-divorce, with a fluid custody arrangement and little conflict. But intentions sometimes do not stand up to the rigors of divorce.

I think that’s a critical piece of the story that that Neumann’s selfie is not telling.  It’s like soon to be parents posting a pregnancy selfie with the following caption:

We have respectfully, thoughtfully and honourably decided to become parents.  We intend to always be parenting partners for our children so that they will never need to hear us fight about whose turn it is to change the fifteenth diaper of the day.

They will never wonder if mom or dad love them because we will never yell and we will tell them each and every day how lucky we are that they are in our lives. They won’t need to struggle to pay for college, because we’ll be rich.  Anyway, they’ll get full scholarships to Harvard because, well, genes.  Our handmade costumes for the spring play will be glorious, as will the cookies that we bake for all the children in town.

*Comment from all parents everywhere: “LOL”.*

We would be chastising those people as sanctimonious “know-it-alls” who really have no idea what parenting is actually like.

Well, divorce, like parenting, is hard work.

A garden requires patient labor and attention. Plants do not grow merely to satisfy ambitions or to fulfill good intentions. They thrive because someone expended effort on them.

– Liberty Hyde Baily

I have seen those couples in the selfies.  They have walked in to my office with the best of intentions.  But intentions require work.  And sometimes, intentions don’t really pan out the way you had envisioned, because life happens.  There is an argument about money, school, kids…the list goes on. Of course, divorce often magnifies problems, as the emotions of divorce make clear thinking extremely difficult.

That having been said, there are ways to minimize parenting conflict following a divorce:

  1. Make a detailed custody agreement – While an agreement can’t provide for every situation that may arise in the future, an agreement that provides for issues as children get older make it much easier to resolve many child related issues rather than going back to court and fighting about them later.
  2. Keep things factual – Don’t fight or complain just for the sake of it.  If there is an issue, explain it rationally and open a dialogue rather than flying off the handle and hurling insults. In short: choose your battles, keep things clean and don’t fight dirty.
  3. Work, work, work – Tensions run very high soon after the divorce.  Sometimes it dissipates, sometimes it doesn’t. Couples also work years to rebuild a co-parenting relationship, and then one dispute may send you back to your own personal dark age. Climbing out of conflict is hard and maintaining a civil relationship is even harder.  But put in the effort to resolve your issues and you will be glad you did. This may involve co-parenting therapy or the use of a parenting coordinator to help you to minimize conflict.
  4. Put the children first – This is what the Neumanns (laudably) aspire to do.  Even if you hate each other, go to the game, put on a smiling face and reserve the fighting for your 3 AM email exchange.  It may be difficult, but the children will thank you for it later.

The Neumanns are certainly starting off on the right foot.  They are committed, wonderful parents with the best of intentions.  I wish the Neumanns many more happy selfies along their co-parenting journey.

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head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.