Archives: Fairfield Divorce Attorneys

Recently I posted about questioning whether your own attorney knows what he is doing and, as part of that question, whether the attorney knows the law surrounding your divorce or related family law matter.  A related question worth discussion is whether you know and understand the law and how it impacts your case.

With busy schedules filled to the brim with jobs, childcare responsibilities, and other daily stressors, I do not want my clients to undertake the unnecessary burden of purchasing a family law textbook and learning its contents front to back.  I do, however, encourage my clients to at least become familiar with the main points of the law.  For instance, most clients seem to know the general principles of equitable distribution in New Jersey – i.e., most assets, under the law, are subject to a 50/50 distribution absent any other factors, credits, or details; most clients also know, and readily offer, his or her awareness of New Jersey’s permanent alimony option. 

It was a recent incident that brought this issue to my attention.  During a first meeting with the parties and a custody expert in a very acrimonious matter, the expert asked one spouse whether her lawyers had explained to her the law of relocation.  She answered "no," despite relocation being one of the primary issues in the case and her desired result.  The expert then asked if her attorneys had made her aware of the Supreme Court of New Jersey’s decision in Baures v. Lewis, and the Appellate Division’s decision in O’Connor v. O’Connor, each of which are seminal cases on the issue of relocation.  The wife answered "no" to each.  Our client, by contrast, was aware of these cases because we took the time to advise him of the cases, and explain their underlying principles.  The expert then directed the wife to ask her attorneys to explain to her the law and those cases.

What is the lesson to be learned here?  If your client is going to spend tens of thousands of dollars, if not more, litigating an issue, make sure that he or she understands the law.  If there is a lack of understanding, or lack of awareness, then how is he or she supposed to know whether their position is reasonable, whether it is worth litigating over, and whether to settle?  An informed client better knows the risks, perils, pitfalls, and chances of success, no matter what area of law is involved.  In family law, where the stakes are often higher and more emotional, it is even more critical. 

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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.   

On the heels of our New Years Resolution Divorce post, I thought it made sense to also resurrect our prior posts on preparing for the divorce process and how to select a divorce attorney. 

Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer. We also previously posted South Carolina matrimonial attorney, Mellisa Brown’s article entitled "How to Find the Right Divorce Attorney for You."

The process, however, starts even before that. On our web site, we have an advice piece entitled Preparing for the Divorce Process.

Since it is linked to this post, I will not repeat everything contained in the piece. However, the topics contained in that piece are as follows:

  • Speak to an attorney now, not later
  • Selecting the right attorney (including how to get referrals for an attorney)
  • Gathering documentation
  • Preparing for the initial meeting
  • Telling the truth
  • Keeping a diary; and
  • Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times. Divorce can be a long, highly charged, expensive process – emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children’s interests.

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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.

The times, they are a’changing – at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of "texting" from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

Continue Reading THE USE OF MODERN TECHNOLOGY AS A FORM OF DOMESTIC VIOLENCE – THE APPELLATE DIVISION WEIGHS IN

Recently I blogged on the difficulties experienced by some spouses left with no choice but to abide by New Jersey’s "no fault" divorce process.  Looking at the husband in "Crazy, Stupid, Love", and discussing how, if the story there took place in New Jersey, he would have to get divorced simply because his wife wanted to.  Now from the Israeli newspaper "Haaretz" comes the story of a woman who was fined 200,000 shekels (approximately $56,000) by an Israeli court for refusing to divorce her husband, even after she was directed to do so by a Rabbinical court.  

Interesting was the Israeli court’s rationale for the fine, deeming it to be sufficient compensation for the wife violating the husband’s autonomy.  Also interesting was the wife’s rationale for refusing the divorce.  While the husband proved to the court that his wife was infertile and, as a result, should be compelled to divorce him, the wife refused to grant the divorce or participate in the process because she believed that her husband (from whom she had separated years earlier) was simply interested in another woman.  Showing just how stern the court was with its ruling, it held that the fine would stand even if the parties subsequently divorced by agreement, and that the wife could be subject to future fines if she continued in her non-compliance.

Obviously this situation would not occur in New Jersey with its no-fault divorce option.  Further, although not an issue here since it was the husband who sought the divorce, it is worth noting the complexity and nuance involved with procuring a Jewish divorce.  Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry.  A secular divorce will not do the trick, as the couple’s marital status will remain unchanged under Jewish tenet.  We have blogged on this topic previously.  Notably, in the United States, a wife may seek relief from a civil court for an Order directing the husband to grant the Get, such as via an action for specific performance since there really is not sufficient legal remedy to redress the wife’s injury including, among other things, her inability to remarry in the eyes of Jewish law.  In the eyes of the New Jersey judiciary, compelling a husband to obtain a Get provides is for a secular purpose – the end of the marriage.

While such a situation is different from that described herein, both situations reflect the broad cultural and religious spectrum that underlies the divorce process domestically and abroad.    

To obtain a Final Restraining Order, a claimant must, among other things, establish that one of the predicate act of domestic violence actually occurred under N.J.S.A. 2C:25-19.  Notably for the purpose of this blog entry, theft is not one of those predicate acts.  The question then begs – can theft be a form of domestic violence as a component of a claim that one of the actual listed predicate acts occurred?  As recently addressed by the Appellate Division in E.M.B. v. R.F.B., a new published (precedential) decision, the answer could be "yes."

In E.M.B., an elderly mother filed a domestic violence complaint against her 56-year old son, with whom she resided.  Mom claimed that Son had engaged in an act of domestic violence by stealing her car keys, cell phone, bank book, money and some jewelry from her bedroom.  Based on these factual details, and Mom’s testimony, which the trial court found credible, a Final Restraining Order was issued based on a finding that Son harassed mom. 

In reversing the trial court, the Appellate Division broke its decision down into two parts.  First, it concluded that theft in itself is not a predicate act under the Prevention of Domestic Violence Act and, as a result, a Final Restraining Order could not be issued on a claim of theft alone.  The Appellate Division then went into a more detailed analysis as to whether the acts of theft could be classified as an act of harassment.

As to one comment made by Son that Mom was a "senile old bitch," the Appellate Division found that, upon a review of the context and surrounding circumstances, while the phrase was upsetting to Mom, there was no purpose to harass behind the statement and no violation under either subsections (a) or (c) of the harassment statute.  The Appellate Division made a brief, yet interesting commentary on the constitutional implications of restricting speech in the context of the harassment statute, noting that because the First Amendment "permits regulation of conduct, not mere expression[,]" the speech must have a "specific intention [of] harassing the listener."  Mere expressions of opinion uttered through the use of offensive language is not enough to establish harassment.

As to the acts of theft, even if they could be considered a course of conduct, the Appellate Division concluded that there was a lack of proof that Son was motivated by a purpose "to alarm or seriously annoy" as required by subsection (c).  To that end, the Appellate Division found no evidence that the theft was anything more than the son taking Mom’s property for his own use.  As to the prior history of domestic violence aiding the court in finding the occurrence of a predicate act of harassment, the Court concluded that prior incidents of theft could not be relied upon without proof that the thefts occurred with a purpose to harass Mom.  As a result, the Final Restraining Order was reversed.

While we have blogged about the somewhat difficult requirement of proving a "purpose to harass" in the past, E.M.B. is interesting in its constitutional analysis and review of the harassment statute in the context of theft.

When parties resolve their divorce via a settlement agreement, can they agree that neither party will seek to modify the agreed upon terms of alimony and child support?  In New Jersey, a court may generally modify a support obligation at any point in time to achieve equity inherent in this State’s alimony law.  For instance, as detailed countless times on this blog, a party must establish that they have experienced a substantial and continuing change in circumstances under the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980), in order to merit some form of support modification. 

An "anti"-Lepis clause, however, attempts to limit the court’s ability to modify via a waiver by the parties to seek such modification.  To be enforceable, the clause must fulfill several conditions.  First, the parties must include such language in the settlement agreement "with full knowledge of all present and reasonably foreseeable future circumstances," and second, "must bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement."

However, consistent with my assertion above that such clauses are enforceable – until they are not enforceable – the overriding legal principle in New Jersey is that "If circumstances have made the parties’ standards unreasonable, they can in extreme cases be modified.  In less extreme cases . . . the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments."

Continue Reading WHAT IS AN ANTI-LEPIS CLAUSE AND CAN IT BE MODIFIED?

Oftentimes in typical family life, circumstances unfold between grandparents and their children that result in a "cutting of ties," so to speak, where contact ceases not only with the children, but with grandchildren as well.  By that time, grandparents have commonly formed loving ties and bonds with the grandchildren that are at a risk of breaking due to the conflict with the parents.  What are a grandparents’ rights to have visitation with the grandchildren in such a situation?  The answer can be found in New Jersey’s Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, which imposes a difficult burden upon the grandparents to establish a right to visitation because the grandparent is essentially seeking to intrude upon the overwhelming strength of a parent’s fundamental, constitutional right to raise their children.   

Continue Reading GRANDPARENTS FACE A STEEP BURDEN IN SEEKING VISITATION

Following on the heels of Eric Solotoff’s recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator’s involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff’s indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator’s indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator’s fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff’s grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.

Continue Reading NEW APPELLATE DIVISION DECISION REGARDING PARENTING COORDINATOR GRIEVANCES AND FEES

Perhaps its the stress of family life during the holiday season, but many clients of late have claimed that the supporting spouse has stopped supporting the family as he did during the marriage.  The reasons are varied, but often of the same cloth – i.e., the payor spouse claims that he is now earning less money than before, the payor spouse claims that the payee spouse is overspending (despite there being no change from the marital lifestyle) and believes that the supported spouse should get a job after having never worked during the marriage, or, most egregiously, that they simply believe that the marriage is over and a support obligation is over unless a Court directs otherwise.

These situations often leave the supported spouse afraid and wondering how they are going to meet everyday expenses for herself and the kids, while also litigating a divorce matter against their financially superior spouse.  Often this is part of the supporting spouse’s underlying strategy – economic coercion, i.e., essentially trying to force the supported spouse to settle under his terms without going through a protracted litigation.

Continue Reading FEARS OF A SUPPORTED SPOUSE – MAINTAINING THE "STATUS QUO" DURING A DIVORCE PROCEEDING

Throughout the course of this blog’s existence in the family law blogosphere, we have cautioned and advised on the pitfalls of failing to timely divide retirement assets.  An entry addressing this issue dating back almost two years can be found here, only showing how this important issue is one that divorcing parties often do not consider, but are faced with after the divorce is finalized.  How about on the flip-side of the coin, so to speak?  For the party whose retirement asset is to be divided, what is "fair and equitable" for equitable distribution as to when the asset should be divided and at what value?

The Appellate Division recently addressed this issue in the matter of Ejiofor v. Ejiofor, where it reversed and remanded a trial court’s decision for a determination of the current value of the husband’s share of the wife’s retirement accounts. 

Continue Reading DIVISION OF RETIREMENT ASSETS – WHAT IS FAIR AND EQUITABLE?