Essex County Divorce Attorneys

I recently represented a client at mediation during which the parties were able to resolve virtually all of their issues, save for the Wife’s claim that the Husband should make a significant contribution to her counsel fees.

It was the Wife’s position that the Husband had run up her legal fees with multiple order violations, refusal to turn over discovery, and by taking totally unreasonable positions; moreover, since he made more money than her, he had a greater ability to pay her legal fees.

It was the Husband’s position that the Wife had run up his legal fees with her own unreasonable positions.  He also criticized her for choosing lawyers who are more expensive than those he chose to engage, arguing that he shouldn’t be held responsible for her choice to do so.

With this being a major impasse for the parties, it seems inevitable that a judge will decide the issue either in isolation or together with a trial on other unresolved aspects of their divorce.

Because the Family Court is a court of equity, a judge determining whether to award legal fees to one side has to consider the parties’ relative financial positions, including their respective incomes, assets, debts, support obligations, and other relevant financial circumstances.  The Court also must give due consideration to the question of whether one party acted unreasonably, or in bad faith, or violated court orders, or refused to produce discovery and therefore thwarted efficient resolution of the matter.  The Court Rule allows for consideration of legal fees already awarded by the Court, for whatever reason.  Perhaps there was a pendente lite contribution to legal fees for which the moneyed spouse should be credited.  Or, perhaps there is a history of court order violations for which fees were awarded as a form of sanction.  Whatever the reason, prior fee awards must be considered.

Ultimately, the question of whether one side must contribute to the legal fees of the other side is a question of fact, for which the Court must consider the following factors:

  1. The financial circumstances of the parties.  
  2. The abilities of the parties to pay their own fees or contribute to the fees of the other party.  
  3. The reasonableness and good faith of the positions advanced by the parties both during and prior to trial.
  4. The extent of the fees incurred by both parties.
  5. Any fees previously awarded.
  6. The amount of fees previously paid to counsel by each party.
  7. The results obtained.
  8. The degree to which fees were incurred to enforce existing orders or compel discovery.
  9. Any other factor bearing on the fairness of an award.

But here’s the rub.  Just like any other question of fact, the Court must make findings based on evidence.  In other words, there must be a trial or at least a lengthy written submission including evidence produced as exhibits.  As parties, you have to decide:  are you willing to incur the fees to try the issue, or is the amount in controversy going to exceed the fees you would spend to have the judge decide?

And, importantly, what you may view as a clear cut bad faith action or unreasonable position taken by your adversary, the Court may not be so inclined to think is all that bad.  Submitting the issue of counsel fees for a judge to decide is most definitely a gamble, and like any other wager, you should assess the odds, cost-benefit, and the possible outcomes before making the decision to fight the issue to the bitter end.


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.

All Hallow’s Eve is upon us.  All month long, I have watched my favorite Halloween movies (Hocus Pocus, anyone?), visited haunted houses, carved my Jack-O-Lantern, and engaged in all the usual Halloween festivities.  But it occurred to me:  the scariest thing that many of my clients will go through in their lives is their divorce.  And there’s a reason why the ghosts, ghouls, zombies, witches, and hobgoblins of Halloween are trotted out each year to scare us – that feeling of being up against soullessness and inhumanity is terrifying.  And it’s how many of my clients feel about the people they are dealing with through their divorce process, whether it be their ex and/or his/her attorney, a mediator, or even a judge.

Here’s what it can be like:

Zombies Abound:  It can feel like everyone you are dealing with is a soulless zombie – even your spouse.  Suddenly, your spouse may act with no emotion toward you and will forget like the past years of your life together never happened.  For example, according to him or her, you’re not the loving parent to the kids that you know you always were.  His or her attorney will treat you with no emotion at all, acting at the direction of your spouse.

Likewise, the judges, experts, and mediators – whether on your side or not – have a non-emotional role to play.  They won’t necessarily care about the personal issues that are important to you.  They will look at your case in an agnostic, non-emotional way.

Witches Cast Their Spells:  Sometimes, it might feel like there’s a hex upon you and you just can’t win.  Or, it may feel like no matter how untrue or manipulative your spouse’s claims are, the judge or the mediator believe him or her, as if (s)he’s cast a spell over them.  No matter the situation, it may sometimes feel like you have no control or that everything is going your spouse’s way, for no discernible reason.

Vampires Suck Your Blood:  Maybe this is a little too “on the nose.”  While your lawyers aren’t going to be doing unnecessary work, divorces get expensive.  If you are the “monied spouse,” you may be paying for not only your own legal fees, but those of your husband or wife – and not only for attorneys, but perhaps also for various experts, or a mediator/arbitrator.  All while continuing to support the family during the divorce.

Frankenstein Lives:  I often use the term “Frankenstein” when referring to an agreement of any kind that has been drafted, then revised, revised again, and revised some more.  It often becomes a mishmash of different thoughts that each party had at different points in the negotiation, and when taken together, makes little sense as a whole.  This is NOT what you want the ultimate written agreement (or any interim agreements) to be.

So, how do you keep your divorce from becoming a Halloween-style nightmare?  Here are some thoughts:

  • Hire a qualified, conscientious, attorney with a good reputation.
  • Listen  to that attorney.  After all, you hired him/her because (s)he is qualified, conscientious, and has a good reputation.
  • Take control of the story, and change it if you have to.  If you feel like nobody is listening to you, then whatever it is you are saying is not resonating.  For example, if you are claiming that your spouse should have less parenting time because your child has been returned to you from parenting time with bumps, scrapes, or bruises, and the judge is not moved by this information because he or she views them as typical for a child of that age…then maybe you need to try a different argument, if you have one.  Or, if you are arguing that you have tried and tried to find a new job after being fired from your old one, but just haven’t been able to find anything at your prior income level, then maybe you need to stop explaining and start showing the Court exactly what efforts you have made.
  • Keep the written agreement simple, and only make necessary revisions.  While every word in an agreement is important, trust your attorney to ensure that the agreement says what you want it to say.  Don’t over-complicate it just because you insist upon one word being in the agreement that is not there, and don’t give in to the feeling that the attorney on the other side is trying to “trick” you with revisions.  That’s why you hired a lawyer.  In the end, you want an agreement that is easily understood by a third party who knows nothing about your case, because if an issue comes up in the future, you may be assigned a judge who is just that.

 

 

Going through a divorce can be one of the most stressful and emotionally difficult experiences you will ever go through in your life.  Everything that you know is about to change in a dramatic way, and even getting started can be a daunting task.  After having recently blogged about who you can turn to when the divorce is over, here are five things to consider when preparing for the divorce process set (not surprisingly to those who know me) to some of my favorite Pearl Jam song titles and lyrics:

  1. The “Wishlist”:  When setting forth down the path of divorce, know what you are looking to walk away with when it is over.  Maybe you want to retain the marital home so that you can continue living the with the children, or perhaps your primary focus is on the children’s college education.  Maybe you are more generally focused on simply ensuring that you will be able to live some semblance of the lifestyle you once knew without worrying every single day about how you are going to pay your bills while trying to get back on your feet.  Lindsay Heller’s recent blog post about making your custody and parenting time wish list is also great place to start.  Knowing where you want to go and how you are going to get there on all issues will help focus you on what matters most in your divorce matter.
  2. “All that’s sacred comes from youth”:  Do what you can to ensure that the children’s best interests are protected and safeguarded from the outset of the divorce until its conclusion.  If there is no filed divorce action and you are attempting to privately resolve your divorce without an active litigation, consider talking with professionals (therapists, counselors and the like) to learn how best to parent your children during the divorce.  If there is a filed divorce action in the court system, not only should you still consider consulting with such professionals, but also you will be required to undergo New Jersey’s Parent’s Education Program, which, among other goals, is designed to help parents better understand what the children are and will be going through during a difficult time.
  3. Find the right “Fixer”:  The divorce process can be beyond overwhelming for countless reasons.  When searching for a divorce attorney, consider not just looking for someone who is experienced in family law.  Also consider retaining an attorney who you feel comfortable talking to.  Who you can trust.  Who you can confide in and discuss certain aspects of your life and your marriage that you may not ordinarily feel comfortable speaking about with anyone else.  Who is responsive and reliable.  Who can ultimately advocate for you in the way that you believe best serves your interests and those of your children.  Who will listen to you and be mindful of what you are looking to achieve.
  4. “Saw things so much clearer”:  Many financially dependent spouses have no idea what assets or liabilities make up the marital estate.  Perhaps the financially superior spouse always paid the household bills.  Perhaps all assets and accounts are only in that same spouse’s name.  All of a sudden you, as the dependent spouse, are tasked with figuring everything out so that you can simply determine what you may or may not be entitled to in the divorce.  Determining as early on in the process as possible what incomes, assets and liabilities exist will provide you and your divorce attorney with a clearer understanding of the picture that is your marital estate and how it should be distributed.  In so doing, it is best (if possible) to get together the financial documents underlying the incomes, assets and liabilities, such as income tax returns, account statements, bills and the like.
  5. “The waiting drove me mad”:  As I have previously blogged, patience in a divorce proceeding can be a tremendous virtue.  There are so many factors beyond your control that can delay the matter’s conclusion that you can easily and understandably become frustrated and more willing to surrender to an inequitable settlement.  As a result, it is best to concern yourself with what you can control.  As indicated above, get your information and documentation together for your divorce attorney.  Timely comply with court deadlines.  Present reasonable settlement positions and if settlement cannot happen, do what is necessary to prepare for trial.

Commencing the divorce process, let alone going through the process to conclusion, may feel like you are at the foot of a mountain without the equipment necessary to even begin scaling its face.  The process and all of the emotions that go along with it, however, will hopefully be made easier when taking the above detailed steps into consideration.

 

*Photo by Lugnuts (talk) – I (Lugnuts (talk)) created this work entirely by myself. Photo from Pearl Jam show dated 17th August 2009., CC BY-SA 3.0, https://en.wikipedia.org/w/index.php?curid=24027300

As the line from one of my favorite White Stripes songs goes, “Fall is Here, Hear the Yell, Back to School, Ring the Bell…” I know when the new school year has arrived in my house because the boys are getting the last of their summer homework done, enjoying their last days of summer freedom and we are frantically shopping for new school supplies to stuff into their backpacks for their first day.

It is a crazy time of year to be a parent.  For divorced parents, however, the level of stress can be even greater and, as a result, increase the need for better planning and time management.  Grab a pen and a fresh notebook because here are a few tips for the divorced parent to start the new school year.

Become Calendar Masters:  Parenting time, classes, activities, child care, doctor and therapy appointments, sports, birthday parties and more.  The possible scheduling coordination and resulting issues are endless, and, as a result, it is very important to be on top of your game when it comes to knowing what is going on and when.  Using a web-based calendar with your ex can be invaluable to ensuring everything runs as smoothly as possible, and can even be a central hub for communications when emails and texts are not working well.  Consider Our Family Wizard and Google Calendar as two often used calendar options.

Talk to School Administrators, Counselors, Teachers, Coaches and More:  Getting these key figures up to speed on what is happening at home can greatly help them determine how best to care for and communicate with your child.  Have these conversations in-person, when possible, with the other parent and ensure that the both of you are copied on written communications so that no one is left out of the loop.  When appropriate, ensure that you and the other parent are both listed as primary contacts at school, and with sports teams, other activity groups, and doctors.

Attend Conferences, Events and Activities:  Know how your child is doing in school academically, socially, and athletically.  Try to keep everything as positive and normal as possible by attending sporting events, school concerts and plays, and classroom activities.  Try not to let these opportunities pass by without taking advantage, of course, understanding that work often takes precedent.  Your child may appreciate and remember such efforts more than you will ever know.

Keep an Eye on the Kids:  Growing up is hard enough without having to deal with family conflicts at home.  If you see your child having a hard time adjusting to the new school year, consider school counseling or private therapy to work through the situation.  School administrators and counselors may have private therapist recommendations tailored to your child’s needs.

Starting the new school year is always a daunting task for the entire household, but hopefully these tips will help you pass the test with flying colors.