Hunterdon County Divorce Attorneys

In many cases, experts are a necessary, if not invaluable asset to have on your team. Often, they are not only needed to provide the necessary financial calculations (e.g. business valuation, calculating true income/cash flow, lifestyle analyses, tax calculations, alimony and child support scenarios, etc.), they can often help with the negotiation of issues relating to the calculations that they prepared.  Also, many clients have great trust in their experts so they are helpful in reassuring them that the deal is fair from their perspective or to explain why certain concessions may be worthy of consideration.

On the other hand, there are certain experts out there that usurp their role and act like they are the attorney, whether because that is their nature or because the attorney that they are working with has deferred the matter to the expert.  Using a football metaphor, the attorney should be the quarterback of the team, not the expert.

In one recent case, the adverse expert started by trying to value entities not owned by the parties; started preparing a lifestyle analysis when the parties were of retirement age; delayed doing a site visit on the business for no apparent reason and when he did, seemingly knew nothing about the case; kept claiming that he was waiting for documents – but couldn’t tell which documents he needed and there were no documents that had been requested which hadn’t been provided; delayed in providing a report and then when just schedules were agreed to be exchanged, were wrong, grossly deficient, and far less than what was provided by our experts; came to two settlement conferences and became the point person for the negotiations despite clearly/admittedly not knowing the law and then creating issues that simply did not exist (including saying that something which was not an asset, was an asset.)  It seem clear that that expert had made promises to the client at the beginning of the case that he could not keep at the end of it.  In fact, it appeared as though he pre-judged the matter and just assumed there should be more based upon the income, without looking at the spending or the assets in any depth.  Curiously, he kept saying that money “had to be missing” based upon one party’s income, but never bothered to do the forensics to prove or disprove his theory (though if he looked at the taxes paid and spending during the relevant period including weddings for two kids and educational costs, it was clear that no money was missing.)

At the mediation, the expert was doing a lot of the talking and negotiating while the lawyers sat largely silent.  The expert continued to press an agenda not based in reality.  The outcome of this was that the parties substantial needless legal and expert fees, and have delayed if not driven the parties further from settlement.

At a different matter in the last year or two, the experts had a several million dollar math error in their report.  There were also other issues/errors that the mediator (another forensic accountant) saw with their report.  Rather than trying to close the gap, the expert amazingly said, even if I fix the errors, I will change something else to get back to the same number.  It took extricating the experts from the equation to get the case settled.

Again, while experts are a valuable and necessary part of the team, neither the lawyer nor the client should let them run the show.  They are not the quarterback.

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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

In 2012, I blogged on the reported Clark v. Clark decision, in a post entitled, “Finally A Case On”Egregious Fault As It Relates to an Award of Alimony.”

(Photo courtesy of free google images)

In this case, the husband proved that the wife secreted $345,690 from their closely held business during their marriage. He argued that this should have prevented any alimony altogether. The trial judge disagreed but did order the wife to repay half the amount taken, in satisfaction of plaintiff’s equitable distribution interest. He appealed and the Appellate Division reversed the alimony provision of the final judgment of divorce, concluding the facts supported a finding defendant engaged in conduct rising to the level of egregious fault. In reaching its decision, the Appellate Division stated:

… Nevertheless, defendant’s conduct transcends mere “economic impact,” as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the pharmacy. Defendant conceived and carried out a long-term scheme to embezzle the cash receipts from Grayrock, which deprived plaintiff of the immediate fruits of his daily labors and impinged on the viability of the joint business asset and the family’s future security. We determine her actions smack of criminality and demonstrate a willful and serious violation of societal norms.

The court noted that it was, “…  free to consider whether extraordinary, flagrant, economic misconduct during the marriage may rise to the level of egregious fault resulting in divorce and warranting denial of an otherwise valid claim for alimony.” The court further noted that excessive spending, waste of marital assets, or other acts of bad judgment was not “egregious fault.” However, the court held:

However, when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact “violate[] societal norms,” id. at 73, and equate to “egregious fault.” In analyzing such instances, trial courts must consider the totality of the facts and circumstances presented and determine whether the conduct warrants severing all economic bonds between the parties by precluding an alimony award.

So the case was sent back to the trial court with specific instructions.  On the remand, the trial court did not alter the alimony award, at all.  Rather, the amended judgment simply provided it shall not become “payable” until defendant  “pays the judgment” entered against her in the final judgment of divorce for over $167,000, representing half the money she had embezzled over time from the marital business.  The amended judgment, did not alter the amount or duration of the weekly alimony owed by plaintiff, but, at the same time, lowered defendant’s child support payment to plaintiff to $108 per week to avoid rendering her “destitute” and to “honor[] that fact that []defendant has needs [and] made contributions to the marriage.”  The rationale was as follows”

However, the judge concluded that defendant’s significant and secret thefts “still [did not] obviate alimony in this case.” He concluded “that alimony [was] still payable because the defendant’s conduct [only] occurred for 43 out of the 299 months that the parties were married.” He explained that “defendant ha[d] been economically dependent on the plaintiff for a substantial period of time” and that “defendant made contributions as a business partner . . . and as a homemaker.”

The plaintiff appealled and the Appellate Division reversed and remanded the matter, with the same instructions, once again.  In doing so, the Court held:

Initially, we observe that our prior remand was not unrestricted. Rather, we explicitly instructed the trial judge as follows: to determine if egregious fault was demonstrated; and, if so, the judge must consider whether the egregious conduct obviated alimony entirely; and finally, if alimony was still warranted, the judge must assess the impact of defendant’s conduct prior to fixing an amount. Clark, supra, 429 N.J. Super. at 77.

On remand, however, the judge did not reduce the alimony award in light of defendant’s egregious misconduct but, simply deferred the alimony payments despite his determination that defendant’s conduct amounted to egregious fault. Then, he adjusted defendant’s child support obligation to compensate her for the deferral of alimony caused by her misconduct. While we respect the judge’s thoughtful response to the remand, we part company with him on the relief he ordered.

Our Supreme Court has held that generally “marital fault is irrelevant” to determinations of alimony. Mani, supra, 183 N.J. at 72. However, the Court recognized two “narrow” exceptions: (1) “cases in which the fault has affected the parties’ economic life” ibid. and (2) “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” Ibid. The first exception “may be considered in the calculation of alimony” ibid. and the second exception may be considered “in connection with the initial determination of whether alimony should be allowed at all.” Ibid. Both exceptions apply here.

Moreover, the court noted that the reduction in child support impermissibly deprived the children of the required support.

As such, the Appellate Division restated its instructions from the prior opinion and remanded the matter to the Family Part to consider whether defendant is entitled to any alimony at all, and if so, what the appropriate reduction in alimony should be in light of defendant’s egregious conduct.

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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

 

 

 

 

Moody; impulsive; reckless; brash; exasperating. No, I am not describing Charlie Sheen circa 2011.  I am talking about teenagers.

Indeed, Aristotle described these elusive creatures as “heated by nature as drunken men by wine” – and that’s on a normal day.  But rest assured Mom and Dad – your teenager is not trying make your life miserable (although it may seem that way).  There is a likely neurological cause to your budding adolescent’s mood swings and overall maddening behavior.

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As noted by Beatriz Luna, a University of Pittsburgh professor of psychiatry, who uses neuroimaging to study the teen brain, compared with adults, teens tend to make less use of brain regions that monitor performance, spot errors, plan and stay focused.  As a result, a teenager’s quixotic characteristics are only heightened during periods of high stress, fatigue or other challenges.

Of course, to the extent that stress essentially add fuel to the teenager’s already high-burning fire, this poses special problems in a divorce when emotions run high, and even adults experience problems staying rational and balanced.

New Jersey, while recognizing the special characteristics of teenagers, does not offer very specific guidance on the issue of teenage custody. Rather, the good ol’ “best interests” standard continues to apply well past the start of adolescence.   However, in its weighing of the custody factors, if a child is of an age and capacity to form an intelligent preference as to custody, the court will consider the wishes of the child.  Still, the child’s preference is by no means conclusive.

In the consideration of whether to award child support, the Court recognizes, however, it is improper to immediately request a modification of support based upon a teenager’s change in custody.

The Appellate Division has recognized that a child’s change of residence from a custodial to a non-custodial parent is seldom permanent at the time of its inception.  As a general proposition, therefore “some time must elapse before the child can decide whether the new living arrangement really will be more to his or her liking and before the custodial parent can decide whether to accept the change on a permanent basis”.  Ohloff v. Ohloff.  The Court cautioned that during this transitional period, different perceptions of the permanency of such new living arrangements may require that the relative financial obligations of the parties not be altered.

As a result, there is no clear answer in New Jersey as to what extent a child’s preferences are considered in a custody dispute involving a teenager.  But that doesn’t mean you are powerless to help your teenager during this very difficult time.

Here are a few tips to help you do that:

1.         Keep your teen’s need for peer interaction in mind The teen brain is attuned to oxytocin, which (among other things) makes social connections in particular more rewarding.  Teens prefer the company of those their own age.  It’s nothing personal.  Recognizing that a teenager’s friends are probably more important than either you or your spouse may avoid the “it’s not fair” or the “you don’t understand me” unpleasantries of everyday life when you are going through a divorce with a teenage child in the mix.

2.         Create consistent rules between houses Risk taking peaks during adolescence.  In fact, most long term drug and alcohol abuse starts during adolescence, so it is important to use your tools to avoid that as best you can.  Psychologist, JoAnne Pedro-Carroll, indicates structure and a clear definition of right and wrong that is uniform between houses can help.  Otherwise, the teen is likely to rebel against the stricter parent in favor of the parent whose house offers little structure, no curfew, or more freedom generally.

3.         …But don’t be too suffocating Studies suggest that when parents engage and guide their teens with a light but steady hand, staying connected but allowing independence, their kids generally do much better in life.  Strike a balance.  Your teenager will thank you later.

4.         Present a united front – Teenagers can sniff out and rapidly capitalize dissention among the ranks.  A statement to the teen that neither Mom nor Dad will tolerate her shenanigans will send a clear message that there is no room for manipulation of the already volatile situation.

5.         Do not encourage your teen to take sides – They may seem like adults capable of handling the information like “Dad ran off with the housekeeper”, “Mom can’t manage money” or “You’re better off here with me”, but at the end of the day, they are still children.  Placing them in the middle of the situation will cause them to absorb the conflict between you and your spouse.  Generally, a bad idea.

6.         Do not hesitate to get professional help when it is necessary – Many therapists specialize in working with divorced parents and teens to help them co-parent and avoid common mistakes.  If you cannot handle the situation with your teenager on your own, there is no shame in seeking professional help.

But, after all that, here is the good news.  New research about the teenage brain conducted by B.J. Casey, a neuroscientist at Weill Cornell Medical College, suggests that teenagers are incredibly adaptive creatures.  With the right guidance, your moody, sometimes impossible teen may end up able to appreciate that her parents may be able to help her through this tumultuous time.

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Baer, Eliana T.Eliana T. Baer is a frequent 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.

In the past year, you have probably heard this term about a thousand times; especially if you’re a woman.  The book that started it all, “Lean In” by Sheryl Sandberg, focused on encouraging women to pursue their ambitions in a male-dominated world.

In the book, Sandberg offered practical advice to women in the workplace with her much quoted line: “sit at the table,” as in, participate, go for it, don’t sit on the sidelines of your life and watch from the outside.

I read the book a few months back; and I liked it overall.

While the book came under some fire – some called her too rich to write a practical guide for all women, some called her too successful, and others just didn’t like her message – as with all books, I took the parts I liked and left the parts I didn’t like as much.

My main takeaway after reading the book, however was that EVERYONE needs to “lean in” now and again.  If you – man, woman or child – do something, really DO IT.  It means put your heart and soul into it, know you are doing it for a reason, and give your entire self to it.

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Of course, as a divorce lawyer, I applied what I learned from the book to the advice I give clients.  This is especially true when I see someone is not “leaning in” to their divorce.

Divorce is one of the largest decisions any person will face.  Nonetheless, we see people sitting out their divorces all the time.  Someone, man or woman, who wants to bury his or her head in the sand, be unresponsive, or simply fail to participate.

With anything in life, however, the more effort you put in, the larger return you will get.  So here are some practical tips on how to “lean in” to your divorce:

1.         Choose Members of Your Divorce Team Wisely:  A smart, competent lawyer is just the price of admission.  But because you’re “sitting at the table”, you want more.  You want people on your team who understand your issues, will support you throughout the process and will offer suggestions that are in your best interests.  Pick a lawyer with whom you are comfortable. This will help you “lean in” when you really would rather be “sitting it out.”

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2.         Define a Vision:  What do you want from your divorce?  What is the end game?  Sit down (it doesn’t even have to be at an actual table) and make a list, ranking it in order of importance, of the desired outcome of your divorce settlement. Make sure you are calm and level headed at the time. During times of peak stress in the divorce, refer back to the list so that you can determine if you are acting in accordance with your vision, or you are just fighting for the sake of fighting.  If nothing else, it will keep you focused on the prize and make you less likely to throw your hands up and walk away.

 

3.         Don’t Beat Yourself Up:  Stop playing the blame game with yourself.  Feelings of guilt, inadequacy and regret will only serve to hold you back in your divorce negotiations, or in anything that you choose to do for that matter.  Let it go and then come back to the table.  You’ll thank yourself later.

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4.         Done is Better than Perfect:  In her book, Sandberg speaks about one of her favorite posters on the walls of Facebook that declares in big red letters, “Done is Better than Perfect.”  This is especially true in divorce.  You are not going to get everything you want and neither is your spouse.  We wacky lawyers call this a “fair settlement.”  This is where your written vision will come in handy.  Dragging the divorce out for an unattainable settlement will not help anyone.

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5.         Stop Trying to Have it All:  Sandberg states in her book “very concept of having it all flies in the face of the basic laws of economics and common sense.”  Going through a divorce means making adjustments, compromises and sacrifices every day – especially when there are children involved.  Don’t let trying to have it all cause you to give up everything.  Baby steps and deep breaths.

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Eliana T. Baer is a frequent 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.

In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court declined to enforce a provision in the parties’ Marital Settlement Agreement that permitted the parties to retain a Parenting Coordinator to resolve co-parenting issues, due to the existence of a Final Restraining Order  (I note that the FRO was in existence at the time the parties agreed to the language of their MSA).

The Court reasoned that although the pilot program appointing Parenting Coordinators was discontinued in New Jersey on November 26, 2012, the guidelines for the pilot program prohibited the appointment of a Parenting Coordinator in instances of a Temporary or Final Restraining Order pursuant to the Prevention of Domestic Violence Act.

The takeaway from this case is that before you negotiate certain provisions that you feel are instrumental to your divorce agreement, it is wise to consult with an experienced attorney to ensure that such provisions are not contrary to the public policy of our state.  In this case, someone did not get the benefit of their bargain.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

 

Yes, the title of this blog entry is meant to evoke the well known Passover saying, “Why is this night different from all other nights?”  It came to mind when I was recently working with an adversary on a matter when I called to his attention the fact that his client had reneged on her own prior proposals that my client had already accepted.  Generally speaking, reneging on an agreed upon proposal is unreasonable, if not bad faith misconduct.  Reneging on one’s own prior proposals is even worse.  When I challenged the adversary as to the reasonableness of his client’s conduct, his response was, “I’m not going to stop this client from doing what she wants to do.”  In other words, despite acknowledging his client’s own wrongdoing, he was facilitating her behavior by treating her as a client that is “different from all other clients.”

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Now, truth be told, all clients are different from one another.  Each client has his or her own set of facts, emotions, and the like, requiring the representation of each client to be tailored to that very person and that very case.  On the other hand, encouraging a client to engage in this type of litigation-based conduct is questionable.  Notably, since there are 4 different answers to the Passover question I refer to above, I have heard at least 4 other variations  in the past to justify such conduct:

1.  “In all other situations, your client has done wrong, too” – Essentially, the “two wrongs make a right” argument.  In a recent discussion with an adversary about Christmas parenting time, I was told that the other party was being reasonable by reneging on her previously proposed Christmas parenting time offer because my client was not agreeable to a prior holiday parenting time situation.  This sort of response, however, not only prevents a resolution of the issue, but it may result in a costly litigation that ultimately serves no one.

2.  “Out of all of the other cases I have ever done, there has never been one like this” – In other words, the adversary’s argument is that this particular case is so beyond different that anything his client does and says is acceptable, no matter how unreasonable it would portray in any other case.  Judges, experts, mediators, parenting coordinators, and attorneys all rely on established cases and accepted norms in determining what is a reasonable or unreasonable form of litigant conduct.  Hearing an adversary dip into this bag of “previously used lines in other cases” also, serves no one.

3.  “My client is being completely unreasonable, but I have no choice but to go with what they want” – When I hear an attorney make such an assertion, it not only confirms my client’s own sentiment as to how an adverse party has been, but also provides a glimpse into whether a case will settle, or whether such unreasonableness will carry the matter through a potentially costly and lengthy trial.

4.  “Feel free to file a motion if you don’t like it” – Daring the other party to spend thousands of dollars in counsel fees is less a “dare” and more an implied threat, especially when that threat is being made against the financially inferior party.

Ultimately, no matter how different each case may be, there is conduct that can generally be deemed reasonable and conduct that can be deemed unreasonable.  Parsing out when a litigant’s unreasonable, if not bad faith conduct becomes acceptable is not only a difficult line to tread, but can also result in a heated litigation that inures to no one’s benefit when all is said and done.

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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.

Sorry for the inflammatory title.  But it’s true.  Well, at least recent data examined by Enrico Moretti, a Professor of Economics at University of California, Berkely, suggests it is.

Dr. Moretti recently appeared on a Freakonomics Radio Podcast to present his conclusions.

The question posed by one listener was rather simple: “In marriages where a baby boy is born, is there less chance of the husband leaving the marriage?”

And the rather simple question had a rather simple answer – yes.  But then, Moretti continued:  “Parents who have first-born girls are significantly more likely to be divorced. And so parents who have first-born boys are significantly more likely to stay together.”

Moretti authored a research paper along with the economic Gordon Dahl called “The Demand for Sons” in which they analyzed U.S. census data from 1960 to 2000, along with other data, to measure the effect of a firstborn child’s gender on marital stability.

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Moretti and Dahl found the effect of gender on the stability of a marriage fairly significant – divorce where there is a first born boy is about 3.1 percent lower probability of a father for families with a first born girl.  They estimate that over a 10-year period, that accounts for about 50,000 first-born daughters who are living without their father.

In typical economist fashion, however, Moretti and Dahl are here to present the data, not tell us why the data exists; but they attempt to offer three fundamental explanations:

  1. Parents are gender biased. Parents have a preference for boys over girls. And so when they learn they’re going to have a boy that makes them happier and keeps the family intact at least more than when they learn they have a daughter.
  2. Moretti suggested that it is also possible that parents are not gender biased. Parents may realize that having a father might be relatively more important for boys than for girls, either because fathers play an important role model for the boys, or because fathers might have some other type of comparative advantage in raising boys versus girls.
  3. The final explanation is no gender preference, but parents might realize that girls are more costly to raise than boys in terms of time and or monetary expenses.  Moretti makes clear that this is not actually supported by the data, but it may at least be the perception.

Regardless of the reasons, however, Moretti suggests that the effects of this outcome are staggering: “For children and families with an absentee father due to a firstborn daughter, family income is reduced by about 50 percent and poverty rates are increased by about 30 percent.”

When Moretti was asked for a solution, he did not offer many suggestions, because none may exist – at least at this point:

These are deep-seated cultural norms and values. They don’t seem to be going away over time. It’s pretty clear that being born in a broken family has long-lasting economic consequences, and I think maybe that’s where we should focus our energies. I’m not sure it’s feasible, or even desirable for the government to try to change in any ways people’s preferences.

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Eliana T. Baer is a frequent 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.

Recently I lost a dear client and friend, Bill*, after his long battle with brain cancer.  Bill was a man with a kind-hearted spirit and a gentle disposition – one of those “really nice guys” that you just wanted to bend over backwards to help.

While Bill was fortunate enough to spend his last days with his loving wife, surrounded by her family, he also had the misfortune of spending his last days in a dispute with his former wife, who was still collecting alimony from him, garnished from his Social Security Disability Payments.

A while back, I posted Alimony Modification – A Judge’s Checklist.  Bill had each and every box checked off – there was no doubt that his income was reduced, his former wife’s income had increased exponentially, and it was undisputed that he was disabled permanently and involuntarily.

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We attempted to get the judge to see that Bill could no longer handle his alimony payments from his meager income and that his alimony should be terminated summarily – that is, without a hearing.  After all, according to the seminal alimony modification case in New Jersey, Lepis v. Lepis, the Court need not hold a hearing on every single modification case when there are no facts in dispute, which was the case here.

Nonetheless, the court insisted that a hearing be held. This is an interesting contrast to the cases where judges refuse to hold hearings when denying motions outright which I blogged about previously – Motions to Reduce Support: When Applications Are Denied Without a Plenary Hearing, What’s Next?

However, Bill was too weak and too sick to move forward.  He was dying of brain cancer.  Our only option was mediation.

We settled the case shortly prior to Bill’s passing.  He was able to pass with the knowledge that there would be no litigation for his wife to bear following his death and that the case was behind him.

Because the case was settled, it will never be a published decision, it will not be analyzed by family law experts and it will not be bound in the annals of case law in our State.  But it still begs the question: if this factual scenario did not warrant the termination of support without a hearing, what factual scenario does?

*Name has been changed to protect client confidence.

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Eliana T. Baer is a frequent 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.

On Friday, September 27, 2013, the Hon. Mary Jacobson, sitting in Mercer County, declared the New Jersey Civil Union law unconstitutional in the case of Garden State Equality v. Dow.  The basis of the decision stems from the United States Supreme Court’s decision is United States v. Windsor, which invalidated article 3 of the Defense of Marriage Act and required federal benefits be provided to people that have entered into valid same sex marriages.  Post Windsor, it became clear that federal benefits would be granted to those in a “marriage” but not a “civil union.”  As such, New Jersey residents in a civil union no longer (if they ever did) have the same rights and benefits that opposite sex couples had which were guaranteed by the New Jersey Supreme Court in Lewis v. Harris.

Judge Jacobson’s conclusion wonderfully summarizes her decision, way better than I could have.  It is as follows:

Plaintiffs’ motion for summary judgment is granted. Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis  Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey Legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in

United States v. Windsor,      U.S. , 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), invalidated the
Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are

no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

Along with the decision, the Judge entered an Order directing that the ruling go into effect on October 21, 2013.  The judge noted that this ws to give the State “… adequate time to prepare to effectuate this ruling or
to pursue appellate remedies….”

Given the magnitude of the decision and other things going on in the politcal landscape, most people expect an appeal.  If so, the question is whether the matter will bypass the Appellate Division and go directly to the Supremen Court.

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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 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.

Last year, I wrote on this blog about “How to Not Settle Your Case.”  This case on the heels of several months of “interesting”, to say the least, negotiations on several matters which got me thinking about creating a list of things to do if you really don’t want to settle your case. In justifying this list, I noted:

Hey, everybody is entitled to their day in court if they want it. So what if there is nothing that can be gained from it. So what if you can’t win. So what if forcing the matter to trial will create other legal issues. So what if trial will cost tens of thousands of dollars.

Since then, I thought of a few more to add to the list.

  • Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.
  • Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.
  • Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.
  • Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.
  • Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.
  • Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.
  • Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.
  • Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.
  • Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way. 
  • In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.
  • Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.
  • Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

In case you don’t remember, here is last year’s list:

10. Ignore your expert’s advice. What do they really know about the value of your business or how a judge will likely assess your total income/cash flow? What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed? What does the custody expert really know?

9. Ignore your lawyer’s advice. What do they know anyway? If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it. If they tell you that you have real exposure on certain issues or may be forced to pay your spouse’s legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it. And what does your lawyer know about the law or the judge anyway?

8. Ignore the facts of your case. Trust your ability to spin the facts in a way that doesn’t make sense. Plus, how can they prove if you’re lying.

7. Ignore what the neutrals are saying. What do the Early Settlement Panelists know? What does the mediator know? When the judge has a settlement conference and gives directions, what does she/he know? Assume that the people that have no “horse in the race” are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant. Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6. Ignore the law. It doesn’t apply to you anyway.

5. Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying. Assume that you will be deemed more credible than the documents.

4. Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement. Assume that your spouse’s attorney won’t try protecting her/him. All lawyers roll over on their clients, right?

3. Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2. Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future. Make false allegations of neglect or abuse. Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent. What do the experts know about your kids anyway? And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them. Then fight attempts to fix the relationship.

1. Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards. Ignore the maxim “Pigs get fat, hogs get slaughtered.” Put deals on the table and then reduce what you are offering. Negotiate in bad faith. Negotiate backwards. Don’t worry that this conduct may set your case back.

In case it needs to be said (though I doubt it), the above is clearly facetious and tongue in cheek. I do not recommend this behavior. It is usually self-destructive and short sighted. But, believe it or not, these things happen all of the time. While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list. And if it is your day in court that you want, be careful you wish for.

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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 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.