Archives: Essex Fells Divorce Attorneys

There is never a shortage of new and interesting stories involving social media that impact upon our world of family law.  We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding. 

Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.

The basic facts were relatively straightforward.  The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement."  In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year.  In 2010, Mom commenced the first proceeding to increase her parenting time.  Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.

Continue Reading MOM INSULTS SON ON FACEBOOK – LOSES CUSTODY

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

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

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

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

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

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

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

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

Clients frequently ask whether it is appropriate for his or her spouse to exercise parenting time with the children in the presence of the new significant other.  The questions usually go something like this:

  • Can she be there when the kids are there?
  • Should they be sleeping in the same room with the kids right down the hallway?
  • How can he be there with the kids when I have not met him?
  • Does this impact our custody and parenting time dispute?
  • Are the kids going to get mixed messages?
  • Should we bring this to the court’s attention and, if we do, will the judge even care?

These are just a few of the questions that may arise when your spouse starts dating someone in the middle of the divorce and wants to introduce the children to that person, have parenting time with that person present and, perhaps, have overnight parenting time with the kids just a few feet away in the room next door. 

With the changing times come changing attitudes towards such parenting time.  Exposing the children to a new girlfriend or boyfriend is not nearly as taboo as it once was, and, at least in New Jersey, it is generally accepted.  While this is an issue that can always be discussed between the parties and counsel, and while there are always certain cases where a judge might think twice about exposing the children to a new significant other, such as if there is a suspected harm to the children in doing so, there is usually no longer an issue. 

I find that judge’s are less willing, however, to allow overnight parenting time, at least during the divorce, depending on a variety of factors including, but not limited to, the circumstances surrounding the new relationship, the sleeping arrangements, and the like. On the more extreme end, I recently had a case where my client’s spouse had an affair and then demanded to exercise her overnight parenting time with the children present where the kids were aware of what was going on.  Evaluating the circumstances at issue, the trial judge sensibly precluded the boyfriend’s presence during the wife’s overnight parenting time. 

However, as opposed to Alabama – as highlighted in Eric Solotoff’s recent blog post – such conduct will also likely have little to no impact on a custody dispute.

Thus, while you may dislike the idea of your children meeting the new boyfriend or girlfriend, changing social norms dictate that it is more likely to be accepted than not.  With that in mind, divorcing parents should work together to make the children understand and feel comfortable with the changing situation.  The dating spouse should take caution in how, when and where the children should first meet the new person in their life.  Ultimately, courts are going to watch out for the best interests of the children, and any hint that the situation poses a negative to the children will be immediately addressed as necessary.

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

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

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

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

Continue Reading IMPUTATION OF INCOME IN THE WORLD OF ADVERTISING

It seems that moving parties are more often trying to overcome the defects of their motions by arguing that a plenary hearing should be held due to unresolved questions of fact or issues of credibility.  In other words, the litigant asks the court to hold a trial at some point in the future because the party asserts that the court cannot properly resolve the party’s motion simply by reviewing the disputing positions of the respective parties set forth on paper. 

While the case law indicates that a court cannot resolve issues of credibility or disputed facts without a trial, involving testimony, properly submitted evidence and the like, litigants often try to use such case law as a crutch to get past the fact that their motion should be denied on its face.  What often happens, as a result, is that a court will err on the side of caution in the realm of judicial discretion and grant the hearing.  The collateral damage is the incurrence of additional counsel fees, and substantial time before the motion is actually decided, thereby leaving the parties in limbo.  While hearings are often necessary to resolve legitimate issues, the question is whether the issue is always legitimate.

For the financially superior moving party, this may be exactly what he or she wants, as convincing a court to grant a future hearing can be an effective tactic to pressure the financially inferior party to settle.  While that party can seek counsel fees from the court to help take them through the litigation against the other party on an even playing field, there is no certainty that such fees will be granted.

Continue Reading JUST THE FACTS JACK – OR A LEGITIMATE QUESTION OF CREDIBILITY?

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Litigants who are displeased with the outcome of a judicial decision can rest assured that there exist multiple avenues by which a review of the decision may occur – mainly, in the form of a motion for reconsideration or an appeal.  This post focuses on the reconsideration route, which, despite the large number such motions that are filed, is actually supposed to be quite strict in its application. 

As a matter of common sense and an effort to avoid an even worse judicial calendar backlog than that which currently exists, reconsideration applications are not simply a way for the unhappy litigant to get another “bite of the apple”.   More often than not, however, it seems that reconsideration applications are exactly that –a way for the dissatisfied party to be heard again on the same issues with the hope that the trial judge will simply change his or her mind. 

Rule 4:49-2, which applies to reconsideration motions, does not provide much by way of direction.  Rather, it focuses largely on the deadline for filing.  It states:

 

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.  The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.  

 

Various cases have fleshed out what constitutes a sufficient basis for reconsideration:

  • The court’s decision is based on plainly incorrect reasoning;
  • The court failed to consider evidence;
  • There is good reason for it to reconsider new information that was not available at the time of the prior judgment/order; 
  • By correlation, the motion may not be based on facts known by the moving party prior to the entry of the judgment or order; and
  • The motion may not simply be an effort by the moving party to reargue the motion and expand the record – the motion is not an opportunity for the previously losing party to attempt a second “bite of the apple”.

Continue Reading SOUR GRAPES AND A ROTTEN APPLE – WHEN RECONSIDERATION IS MORE LIKE FRUIT SALAD

All too often I hear from clients about how they should end up with a specific result in their case because their friends went through divorces of their own and ended up with that desired result, or something similar.  I can certainly sympathize with a client who want to talk to their loved ones and other people who have gone through what they are going through to not only make sure that they are getting a fair result, but also for the simple purpose of comfort during a stressful time.  

It is critical, however, for each litigant to understand that every case is different and rests on its own facts and circumstances.  Each set of parties are also different from case to case, and as a result, each outcome is different.  It is always important that a client understands this to be the case as we explain to them the divorce process, what the law is and how it is applied, and what reasonable expectation he or she should have as to how the results received by others.

For instance, I learned from another contributor to this blog that whenever a client asks how long their case is going to take, the answer is generally "it depends."  It depends on you.  It depends on your spouse.  It depends on the facts of your case.  While matrimonial attorneys often have a preliminary sense as to what alimony or equitable distribution may be based on prior experience, no one can look into the future to see exactly what will happen.  Most clients want the divorce process to be as short and amicable as possible, and, from what they have seen or heard, expect only the longest and most acrimonious divorce imaginable.  Thus, from the very start the client must be made aware that the length and outcome of a case depends, in large part upon the parties themselves.

There is, perhaps, no better example of when this occurs than with the issue of alimony.  This is likely because it is generally a "hot button" issue, especially in New Jersey where alimony reform has been the subject of extensive recent discussion and attempted legislative change.  Also, unlike child support, which is generally based on the formulaic child support guidelines (unless further analysis is required where the parties’ collective net incomes exceed the guidelines’ limit), and unlike equitable distribution, which is generally a 50/50 split of marital assets (except with the distribution of the marital interest in a business), alimony is, perhaps, subject to greater shades of gray.

One of the first questions that I am always asked when it comes to alimony is for how long the alimony will be.  The question is then usually followed by the client stating how long the marriage was and what their understanding is from other people as to when permanent alimony comes into play.  Interestingly, while the length of the marriage is certainly an important factor, litigants often seem to treat it like the only factor, despite the alimony statute listing no less than fifteen factors for consideration. 

While there are certainly some predictors and practices to help advise a client in determining what alimony may be, there is no set of alimony guidelines or formula for calculation.  Rather, there are the factors I reference above, each of which is applied to the specific facts of a given case.  Thus, while the comfort afforded to a client in speaking with their loved ones is a strong draw, we as matrimonial attorneys must instill in them the notion that no result will ever be the same (nor should it be), especially in the context of settlement, where there is commonly a give-and-take between the issues of alimony and equitable distribution.  

Thus, while getting by with a little help from friends is often essential to providing comfort, advice, and compassion in a time of need, it is the matrimonial attorney who possesses the level of expertise upon which clients rely to take them through the divorce process and achieve a desired result under the circumstances of their specific case.  

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

Reading and considering Eric Solotoff’s blog from earlier this week regarding the benefits of settlement, it is also critical to know when to settle and, quite frankly, whether to settle at all. This especially applies to those current or former spouses who simply cannot afford to litigate against a financially superior former spouse. This situation is often referred to as litigating on an "uneven playing field."

Trying to some degree to place myself in your shoes, it can only be an extremely difficult decision whether to, once again, go up against the other party with the bottomless wallet, or just settle for what they want and get it over with. These decisions may not only have an impact on your own wallet, but also on your family’s overall well being, especially if children are involved. Too often, the other party knows this to be the case, which is why they will continue to file or threaten to file motions in the hope that you will eventually "give in" under the pressure.

This blog should not be taken as a sign of encouragement to litigate a case, but rather as a cautionary note for what you, as a litigant, may be sacrificing with your decision. Ultimately, it is you who has to wake up in the morning and be comfortable with your decision, which is why having all information at your disposal is, perhaps, the most important part of the decision-making process. 

Continue Reading Deciding Whether to Settle or Defend Yourself Against a Persistent and Financially Superior Spouse

When settling a case, the parties and their lawyers can be far more creative in settlement then a judge can be if the case is tried.  While family judges have wide discretion in their decision making, creativity is crafting the most beneficial result for both parties is rarely something they can do.  In fact, in many ways, they are constrained from the type of creativity that we see every day in divorce agreements. 

What if you are a high earner, but your income fluctuates greatly from year to year?  While a judge will likely have no choice but to determine your average income over 3 to 5 years and base support upon that as well as the rest of the statutory factors, you may want to agree on some kind of formula so that there is fairness year over year, i.e. you pay more in a better year and less in a down year. For example, if your average income is $2,500,000 but your income fluctuates between $1 million and $4 million per year.  You would really hate paying alimony in those years you only make $1 million.  If a judge decided this case using averages, you might be forced to pay your entire net income, or more, to you ex spouse in the down year.  Similarly, a judge could never say that support "automatically" is reduced or even reviewed if your income is less than $X in the future. 

This concept was reiterated again by the Appellate Division on October 29, 2012 in an unreported  (non-precedential) decision in the case of Means v. Snipes.  In this case, after a trial, the judge decided that in the event that defendant’s annual income fell below $2 million, he would receive a reduction in alimony. This is the one thing that both parties agreed was in error – a rare agreement in a very contentious case.

Continue Reading Another Reason to Settle – Parties can agree to things that Judge's can't mandate – like automatic reductions and formulas for alimony

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 "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant’s and Clients."  I thought that the article was so good that I asked Melissa if I could re-post it as a guest blog on this blog, and she graciously agreed.  Her article is as follows: 

In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account. Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel. On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account. The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent. In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence. One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case. However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook. One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting his client’s private (and irrelevant) information.
 

Continue Reading Read Melissa Brown's Interesting Article Entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant's and Clients"