Livingston Divorce Attorneys

In the recent decision In the Matter of the Adoption of a Child by J.E.V. and D.G.V., the New Jersey Supreme Court unanimously held that:

[A]n indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel.  A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution.

In this important decision, the Supreme Court built upon the strong foundation of preservation of parental rights under the due process clause which it has maintained time and time again, noting that as a State, our jurisprudence and legislation have historically sought to provide greater protections to the fundamental due process rights of parents than even United States Supreme Court jurisprudence and federal legislation.

In the case at issue, the biological mother of the child in the matter had placed the child with a private adoption agency; however, after counseling, the biological mother decided she no longer wished to terminate her parental rights and began a service plan designed to reunite with her child.  Despite this, the private adoption agency began to make an adoption plan for the child and the potential adoptive parents instituted adoption proceedings over the biological mother’s written objections; she, in fact, objected in writing no less than three times.  After an adoption hearing at which the biological mother was self-represented because she could not afford counsel, her parental rights were terminated and a Judgment of Adoption was entered in favor of J.E.V. and D.G.V.

Interestingly, the Court found that despite the fact that the adoption agency in this case was a private one, “the State’s involvement” in termination of parental rights was still “real” because the termination of parental rights under the Adoption Act is a part of the State’s “overall and coordinated system of child protection and supervision.”  In other words, the State is still involved in the decision to terminate parental rights even in instances where the adoption is private as opposed to when the Division of Child Protection & Permanency institutes termination of parental right and/or adoption proceedings.  Because the State is involved, constitutional due process rights – specifically, the fundamental right to parenthood – are implicated.  And, where this paramount right is at issue, the Court went on, indigent parents opposing termination of parental rights and adoption proceedings cannot be expected to represent themselves adequately at trial given that they are laypeople unfamiliar with the rules of evidence, rules of court, and so on.

The Court went on to find that this right to counsel is triggered immediately upon the biological parent’s objection to the private adoption agency’s decision to proceed toward adoption of the child at issue.  Put another way, when the indigent biological parent objects in writing, that parent must now immediately be appointed counsel so that he or she will be ably and adequately represented at trial.

Looking forward, the Supreme Court strongly encouraged the Administrative Office of the Courts and the Legislature to provide support to indigent parents who oppose the private adoption of their children, much in the way these entities took action when the Court addressed the issue of an indigent parent’s right to counsel when the Division of Child Protection & Permanency (a State agency, formerly DYFS) seeks to terminate parental rights and place the child away from his or her biological parents.  For those cases, the Legislature previously established the Office of Parental Representation, a branch of the Office of the Public Defender which assists indigent biological parents with their cases for free.  The Court recommended that the Director of the Administrative Office of the Courts develop a form designed to help indigent parents respond directly to private agencies’ notification of intent to proceed with adoption.  The Court also called upon the Legislature to create an agency similar to the Office of Parental Representation to assist in private adoption cases.  Time will tell whether these bodies will respond to the Court’s recommendations accordingly.

 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

I recently came across an article, Getting Financially Naked with Your Partner, by Erin Lowry, that got me thinking about a question that is bound to arise more and more in this practice.  Millennials, as a generation, are beset by student loan debt at the highest levels in history.  As they start marrying and, as a corollary, divorcing, a common question they will ask is: what responsibility do I have when it comes to my husband’s / wife’s student loan debt?


student loan debt graphic

As with many issues, the answer will be fact specific.  It is well-settled law in New Jersey that any pre-marital assets or debts, and any passive growth of either the asset or the debt, are the separate property of the spouse who acquired the asset or the debt.  For example, Doug Debtor may have acquired $50,000 in student loan debt when he was in college, years before he met his wife.  In principle, if that debt still exists when Doug and his wife get divorced, he is going to be responsible for the entirety of it, including any interest on the debt that accrued while Doug and his wife were married.  Of course, the facts of any individual case may very well blur that bright line rule.  For example, maybe the parties lived together (though were not yet married) when the debt was incurred, and it was used to pay for living expenses.  In that case, an argument could be made that the non-debtor party should share in the debt – after all, s(he) benefited from the loan.

However, both parties will share in responsibility for debt incurred during the marriage – including student loan debt incurred by one of the parties for his or her education.  The idea here is that the parties as a united front made the decision to take on that debt and, hopefully, reap whatever benefits come with the spouse’s education; therefore, they are both responsible for the debt.

The set of facts raised in Lowry’s article present some interesting questions.  While the debt is pre-marital and was incurred apparently before the couple ever knew each other, the “deal” they make is that when they’re married, they will live off of Lowry’s income, and use her boyfriend’s income to pay off his student loan debt.  That is a fairly explicit declaration that, although he will be responsible for paying off the debt, she will be responsible for supporting him.  In New Jersey, such an arrangement in combination with other facts could be used to show that she was the supporting spouse during the marriage and that he is entitled to alimony in the event of their divorce – and what’s more, entitled to alimony in an amount that would allow him to continue devoting his entire income to paying off his student loan debt.

Certainly, it’s important to “get financially naked” with your husband or wife – after all, you need to be transparent with one another so you can financially plan for your future.  But in the event of a divorce, it’s also important to realize that the way you dealt with pre-marital student loan (or other) debt during your marriage may have an impact on the outcome of financial issues attendant to a divorce.

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

The way things have gone lately, I thought it was time to reprise this blog post, originally published in April of 2014.  It is unfortunate for the system and the litigants to have to endure the misrepresentations by people who should know better.

I like a good joke as much as the next person.  That said, like many in my profession, I get sensitive about lawyer jokes.  Often, they are just cheap shots that in no way reflect the reality of what most of us do.  I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”

This one is particularly offensive on many levels.  Justice cannot tolerate dishonesty on the part of the lawyer.  In fact, honesty permeates the Rules of Professional Conduct:  meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful.  There is an expectation in the system that someone is not telling the truth.  That is why judges and juries have to determine who is more credible.  That said, a lawyer cannot allow their client to get on the stand and lie.

(photo courtesy of free Google images.)

Unfortunately, however, lawyers lie all of the time.  Small lies and big lies.  They lie to their adversaries and they lie to judges.  I am not talking about an honest mistake – you believed that documents were not provided, but they actually were.  That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.”  Efforts then digress into addressing the misrepresentation that could simply be avoided.

A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns.  I did not believe this to be true and said as much, but I had only been in the case for a few days.  The judge reamed my client.  When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt.  Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake.  She refused and then it became a much bigger issue.  It was a total and needless waste of time.

That’s a small lie that caused damage.  What about the big lie?  In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client.  The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.

In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise.  She disavowed her own statement.

In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.

Why do lawyers lie?  Some do it to get an advantage in the case.  Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful.  Some do it because it is a personal game – I win – you lose.  Some do it because they are unprepared or did not do what they are supposed to do so they are covering up.  Some do it to cover for their client’s misdeeds. Some do it because they just always lie.  For some, it is all of the above.

What do you do about it?   You raise the issue to the judge – but often, the judge doesn’t do anything about it.  Some times, it takes a trial to prove it and trials are few and far between.  Further, ethics complaints are usually tabled if not dismissed until a litigation is over.  If the perpetrator is a junior lawyer, perhaps you speak to their supervisor – but often that goes no where, because people protect their own.

That said, don’t let it go.  Call the person out.  Be prepared with your proofs.  At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight.  It is untenable when they lie and it does a disservice to the litigants, the courts and the system.  Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst.  And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable.  And don’t tell the big lie, for any reason.

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

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On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order;
  2. the parties consent and the court approves the continuation of support until after a predetermined date; or
  3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is participating full-time in a post-secondary education program;
  3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
  4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.


These are the facts that you need to know:

  • The parties were married in 1994 and had one child, who was born in 1995.
  • The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
  • Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
  • In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
  • In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
  • In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
  • During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
  • Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
  • From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
  • Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
  • Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

  1. willfully forsaking the decedent;
  2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
  3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of digitalart.

Litigants and family lawyers have eagerly awaited each decision from the Appellate Division that could shed some light on the numerous provisions in the amended alimony law that became effective on September 10, 2014.  On November 6, 2015, the Court released an unpublished (not precedential) decision in Court v. Court, wherein the trial court’s order denying an ex-husband’s motion to terminate his alimony obligation and vacate his alimony arrears was reversed and remanded for a plenary hearing.

retirement pic

The decision is interesting in its application of the amended provisions of the alimony law with respect to the issue of retirement, especially based on the chronology of the facts at issue.  The factual highlights are as follows:

  • The parties were married in 1981 and a judgment of divorce was entered in 2003 – approximately 11 years before the amended law took effect.
  • The court in the JOD ordered ex-husband to pay $1,000 per week in alimony.
  • Ex-husband was not paying as ordered and, in July 2013 he moved for a modification that resulted in a weekly alimony reduction to $500, plus a weekly payment towards accumulated arrears in the amount of $250.
  • An economic downturn in ex-husband’s industry and his deteriorating health caused him to retire in August 2014.
  • In 2014, ex-husband sought to terminate his alimony obligation based on his retirement at age 72.  He claimed that earned approximately $27k annually from Social Security and ex-wife was eligible, but refrained from applying for what would amount to $1,221 in monthly Social Security benefits.
  • Ex-husband’s arrears totaled almost $200k as of July 30, 2014 – less than 2 months before the amended law went into effect.
  • The trial court found ex-husband “provided the [c]ourt with sufficient evidence of his health problems to show he ha[d] lost his life insurance and [was] unable to be gainfully employed.”  It also found both parties in a “difficult financial situation” and noted how ex-husband’s sole income source of Social Security benefits was not enough for him to pay his bills, alimony and arrears.  The court also noted, however, that ex-husband – at age 72 – may again find work in the future and, as a result alimony should only be reduced.  The court, as a result, reduced the alimony obligation from $750 per week to $400 per week, with a $50 payment towards alimony and $350 towards arrears.

On appeal, the Appellate Court found that the trial court failed to make sufficient factual findings in support of its decision, specifically, it did not directly address the issue of ex-husband’s retirement, nor did it provide a basis for the reduced amount or ex-husband’s ability to pay “despite the findings defendant was unlikely to become reemployed given his advanced age and deteriorated health.”  Finally, the Court found that the family part judge “ignored defendant’s right to retire in good faith at age seventy-two.”

Notably, the Appellate Court directed the trial court to apply the amended alimony provisions on remand to determine whether ex-husband was still required to pay alimony.  In so doing, the Court conveyed “There is a rebuttable presumption alimony shall be terminated ‘upon the obligor spouse or partner attaining full retirement age.'”  It then cited to subsection (j)(1) of the amended law, which provides that alimony could only continue if ex-wife presented proof to overcome the rebuttable presumption based upon the following factors:

(a) the ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has forgone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant.

The Court added, in reference to subsection (j)(1) that “any arrearages that have accrued prior to [alimony] termination shall not be vacated or annulled.”  Thus, a payment towards arrearages was required in an amount based on ex-husband’s ability to pay.  Interestingly, Court indicated that the amount due could be reduced to a judgment upon which interest would accrue, thereby allowing ex-wife to take appropriate steps to collect.

I found the decision noteworthy multiple reasons, each of which have to do with the Court’s application of the rebuttable presumption under the new retirement language and its related factors.

Generally, the amended law seemingly, but not definitively from a legal application standpoint, provides three subsections in connection with an application for retirement that a trial court is to utilize depending on the facts of a given situation: (j)(1), (j)(2) and (j)(3).  Each subsection contains its own similar, but somewhat different sets of factors.  Only subsection (j)(1), which the Appellate Court referenced here, contains the “rebuttable presumption” language.  Subsections (j)(2), which applies to applications for early retirement, and (j)(3), which applies to retirement applications filed in cases where there is an existing final alimony order or enforceable written agreement, do not contain such language.

As a result, there existed a question emanating from the new language as to whether the rebuttable presumption referenced in (j)(1) applies to any retirement application, or just retirement applications stemming from final alimony orders/enforceable agreements entered AFTER the amendment’s effective date.  In other words, does the rebuttable presumption also apply to applications made under subsections (j)(2) and (j)(3)?  As the factual circumstances in Court involved a pre-amendment final alimony judgment, the answer from the Appellate Division, although not in a reported decision, suggests that the rebuttable presumption may apply to all retirement applications made under the new law.

The answer becomes somewhat uncertain, however, because the Appellate Court  remanded to the trial court with a direction that it apply the rebuttable presumption and factors enunciated in subsection (j)(1).  No reference in the decision is made to subsection (j)(3), which, as noted above, applies to retirements applications filed in cases where there is an existing final alimony order or enforceable written agreement.

Thus, while the decision in Court sheds some light on applying the retirement provisions of the amended law, it and future decisions will only provide a greater roadmap for litigants and attorneys with respect to seeking an opposing an alimony termination.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

I was recently reading a New York Times article from early November entitled “Stressed, Tired, Rushed:  A Portrait of the Modern Family”, and couldn’t help but see the commonalities between today’s modern family and the ever-changing issues raised in divorce.

The author, Claire Cain Miller, citing from a new Pew Research Center Study, conveyed to readers what many of us may already believe/know, even without statistical support in our back pockets – namely, that children in today’s society are more likely than not to grow up in a household in which their parents work.  The study also found the existence of households with both parents working full-time “in nearly half of all two-parent families” (46% of all two-parent households have both parents working full time – an increase of 31% from 1970; similarly, the percentage of households in which mom stays home has declined from 46% to 26%).

high wire

Parents’ ability to balance everything that comes with everyday life has only become more difficult, the study concludes, since there is only so much time that can be devoted to the kids, each other, friends, the house, the family dog, and, last but not least, the workplace.  Miller also noted that how the data reveals that workplace policies (such as paid family leave and before/after child-care) are not yet up to speed, or current to truly help with the situation when dealing with what is described as a permanent and societal shift in the traditional family structure.

Pew found that 56% of all working parents say the “balancing act is difficult, and those who [found such difficulty] are more likely to say that parenting is tiring and stressful, and less likely to find it always enjoyable and rewarding.”  It should be no surprise to anyone, as a result, why divorce rates are rising nationwide.

Interestingly, the article touched upon a changing shift in the mentality of parents that divorce lawyers find more common than ever in custody disputes – specifically, situations where mom still asserts that she has always handled primary caretaking responsibilities despite working full-time, and dad asserting that he does just as much as mom, if not more.  In other words, the article notes:

In most cases . . . women still do the majority of the child care and housework – particularly managing the mental checklists of children’s schedules and needs – even when both parents work full time . . .Just don’t tell fathers that.  They are much more likely than mothers to say they share responsibility equally.

Not surprisingly, more dads say they equally share in such tasks than moms think they do.  Custody evaluators in our field are, more than ever, making recommendations about what is in the children’s best interests where both parents work full-time.  For better or for worse, evaluators are seemingly more likely, under such circumstances, to recommend an equal residential parenting time arrangement.

Some other notable statistical findings from the Pew study:

  • Of full-time working parents, 39% of moms and 50% of dads say they feel that they spend too little time with the kids.
  • 59% of working moms, and more than 50% of working dads, say they don’t have enough down time.
  • The difference between working parents with college degrees versus parents without such degrees (65% with and 49% without) found the work-life balance difficult, with Miller speculating that the reason may be that workers with degrees may be expected to log in hours even after they leave the office despite increased flexibility during the work day.
  • White parents are more than 10% likely to express stress than nonwhite parents.
  • 41% of working moms said being a parent made it harder to advance at work, compared with 20% of dads.
  • Parents spend more time with the kids and less time maintaining the house due to less available time for both.  As compared to past surveys, however, Dads spend less time working, double the time on housework, and tripe the time time on child care.  Even still, the article noted how women still do much more, especially when it comes to raising kids, managing their schedules, caring for them when they are sick, and the like.  In addition, “Fathers and mothers are much more likely to equally share in doing household chores, disciplining children and playing with them.”

The article highlights the changing, or permanently changed nature of today’s modern family, which, from an overarching perspective, will continue to shape the divorce landscape for decades to come.  Litigants’ positions in divorce proceedings, as a result, will continue to evolve and, more likely than not, be less grounded in notions of the traditional family that is ever slowly, according to Pew, becoming a thing of the past.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Ah, Thanksgiving, Christmas and Hanukkah.  What many people generally consider to be the most important holidays of the year are upon us.  The time of year for being thankful, enjoying good food, football on Thanksgiving or basketball on Christmas, and celebrating with family another year gone by.  After almost eight years, this blog contains so many hundreds of posts that they frequently blur together for this writer, but one post written two years ago by Lauren Beaver about being thankful for what you have stands out if you want some inspiration this morning.


Thus, while one can only hope that the holidays bring minimal conflict and nothing but happiness for your family, oftentimes, especially for divorced or divorcing couples, conflict is front and center.  Interestingly, I have seen increasing conflict between parents as to even the Halloween holiday, but such issues generally pale in comparison to what transpires at the end of the calendar year.  I have written about holiday parenting time issues before, and, with Thanksgiving mere weeks away I thought it would be a good time for a brief refresher course so that you can address any issues now – before it is too late.

1.  Who has the kids and when? – Many parenting time agreements provide details down to the very minute of when the kids are with mom and when they are with dad, who is picking them up and taking them to the other parent’s house, and more.  Day before Thanksgiving, Thanksgiving Day, Thanksgiving weekend, Christmas Eve, Christmas Day, the first night of Hanukkah, second night, third night, winter break…the possibilities and machinations are seemingly endless.

Many agreements, however, are far more general, perhaps agreed upon at a time with you thought you would have no issue in working out these issues with your former spouse on an annual basis.  Who gets to put Bobby to bed on Christmas Eve?  Who gets to open up gifts with lil’ Tammy on Christmas morning?  Who is lighting the menorah with Benny?   Now is the time to firm up the details, because any conflict may leave you with no choice but to bring the issue to a family court judge.

2.  What holidays will the children be celebrating? – Perhaps one parent celebrates Christmas and the other celebrates Hanukkah.  Now what?  While the law generally provides that the primary residential parent can have the final say in deciding what religion the children are raised in, there is, for the most part, no issue with the child being exposed to and celebrating both holidays.  This, however, may not sit well with both parents.  If the issue of religion and religious holidays are not addressed in your agreement or court order, try to work it out to avoid a holy war.  Otherwise, you may end up having a judge decide the religious issue for you, which is not a place where you want to be.

3.  Who is buying gifts for the kids?  Who is buying that Thanksgiving turkey or Christmas ham?    This type of issue typically arises when the holidays fall during a divorce proceeding, but oftentimes fall afterwards as well.  Perhaps the monied spouse refuses to give money to the dependent spouse for such items, and prefers to lavish his or her own gifts upon the children as a way to buy the kids’ affections.  I once had a case where the dependent spouse was not receiving her ordered support and, as a result, actually had to go before the court and ask for money to buy a Christmas turkey and gifts for the children.  Suffice it to say, the judge was horrified at such a situation.  Do not let it happen to you.

4.  Who is saying what to the kids about whom?  Again, this is supposed to be a time of year for celebrating, being thankful, enjoying family, and looking forward to a new year.  Do not let your kids become the epicenter of your conflict with your spouse or former spouse.  Do your best to avoid disparaging the other parent to the kids.  Do not let anyone else talk badly about the other parent, including grandma or grandpa who may no longer have that loving feeling for their former son or daughter in-law.  Stop yourself from getting into an argument with the other parent in front of the kids.  Keep in mind that the kids will remember these holidays for years, if not decades to come.

These are just a few of the issues that may arise at this time of year and some tips to avoid or address them.  Now is the time – and not the day before Thanksgiving when family court judges are often inundated with emergency applications because mommy refuses to bring Johnny to daddy’s house, or on Christmas Eve when daddy refuses to allow Sammy talk to mommy – to address these issues through amicable agreement or litigation.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Clients with children often ask what can a court do if the other parent violates an existing custody or parenting time order.  The level of emotion and concern raised by such violations can be overwhelming and, oftentimes, victimized parents do not know what to do or where to turn.  Just a few of the issues and questions may be:

  • When the other parent deprives me of seeing my child despite the terms of the parenting time schedule that we agreed to, can he or she be forced to pay a fine?
  • If the other parent does not allow me to speak with my child on a “reasonable and liberal” basis as set forth in our agreement, can I file a motion with the court and have the person thrown in jail?
  • What about when the other parent does not tell the school or the doctor that I am supposed to have access to all of our child’s records too, and am supposed to be notified of events, meetings, appointments, and the like?
  • How about when the other parent decides to take our child to religious school, even though our agreement specifically says there will be no religious school?
  • Can I force the other parent to pay my attorney fees for having to address these issues?  What is the other parent going to say?  Are the answers ever “black and white”?

tug of war

While each situation poses its own unique set of facts and circumstances, where, as a result, the situation is almost never black and white or straightforward, there are options available when asking a court to address the situation.  I address two of the more widely utilized options below.

1.     Rule 1:10-3

Rule 1:10-3 of the New Jersey Rules of Court is the most commonly relied upon rule when one parent seeks the enforcement of a custody or parenting time order or agreement against the other parent.  The application is generally referred to as a “motion in aid of litigant’s rights” or a “motion to enforce litigant’s rights” and it is designed to remedy the specific violation of the order or agreement at issue.

Importantly, any sanctions imposed pursuant to Rule 1:10-3 are supposed to be “coercive, not punitive” in nature.  Thus, the mode of enforcement may even be of a monetary nature – perhaps a fine – or incarceration.  The fine may be of any amount deemed appropriate by the family court judge to coerce the violating party to comply with the order or agreement moving forward.  The offending party may also be required to pay for the moving party’s counsel fees.

2.     Rule 5:3-7

Rule 5:3-7 provides for potential “Additional Remedies” in the event of a custody and parenting time order/agreement violation.  Specifically, subpart (a) provides a court with no less than  ten (10) available options – which may be imposed in combination – in addition to those available under Rule 1:10-3:

  • Compensatory time with the children.
  • Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
  • Modification of transportation arrangements.
  • Pick-up and return of the children in a public place.
  • Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
  • Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
  • Participation by the parent in violation of the order in an approved community service program.
  • Incarceration, with or without work release.
  • Issuance of a warrant to be executed upon the further violation of the judgment or order.
  • Any other appropriate equitable remedy.

Many factors will be at play when a court determines whether to implement any of the above-remedies, not the least of which is the opposition posed by the allegedly violating parent.  For instance, one of the most commonly seen defenses to an allegation that a parent is not seeing a child for parenting time is that the child does not want to go.  Well, then the question is, if that is even true – since shielding the child from the proceeding is ideal, especially for younger children – why doesn’t the child want to go?  Then the issue spiders out into a variety of other potential arguments, such as the child’s age, disparagement of the moving parent to the child by the violating parent, alienation, scheduled activities and more.

Ultimately, victimized parents need not sit idly by and watch as the other parent does whatever he or she wants with respect to custody and parenting time despite an existing order or agreement.  There are many options, and many available remedies, to help ensure that the violations stop before it is too late.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of meepoohfoto.

The Importance of the Filing Date of the Complaint

A recent unpublished decision from the Appellate Division, McNamara v. McNamara, serves as a reminder that, when it comes to marriages, the old saying is true: it ain’t over ’til it’s over.  In McNamara, the parties separated in 2006, but the husband did not file the complaint for divorce until 2008.  However, in his first attempt to file the complaint, he failed to properly serve his wife.  He filed two other complaints in a similarly deficient manner, until finally he filed a complaint that stuck – in February 2013, about seven years after the parties’ separation.

The parties were able to settle all of the issues except one: when did the marriage end?  As family attorneys know, this question is critical because the end date of the marriage serves as the cut-off date for purposes of equitable distribution of marital assets and debts.  For example, at issue in the McNamara case, the husband held a pension during the marriage, to which the wife was  entitled an equitable share.  The question was whether she would be entitled to a share of the pension’s value as of December 2006 (the date of separation), as of June 13, 2008 (the date the husband filed his first complaint for divorce), or as of February 13, 2013 (the date the husband filed a complaint for divorce that commenced a proceeding that led to a final judgment of divorce).

If you ask the parties to a marriage when their marriage ended, you will inevitably get different answers from each spouse.  The question is, truly, a subjective one.  When I was a law clerk, I saw a trial during which the husband testified that he knew the marriage was over while the parties were on their honeymoon – and they were married for more than twenty years.

Because the question of the end date of the marriage is a thorny and subjective one, our courts have long instituted a presumption that the end date – and therefore the cut-off date for equitable distribution purposes – is the date on which the Complaint for Divorce was filed.  Not only must the complaint be filed, but the complaint must commence a proceeding that culminates in the entry of a Judgment of Divorce.  This caveat is a logical one.  I can imagine a scenario where a complaint is filed, the parties reconcile for a period of time, and then later decide to go through with a divorce.  The marriage couldn’t be considered “irretrievably broken” the first time the complaint was filed, since the parties ended up giving it a second try.


Using a Date other than the Filing Date of the Complaint to Establish the End Date of the Marriage

So, if your client wants to use a different date than the filing of the complaint for divorce to establish the end date of the marriage, he or she better be prepared to prove it.  As the Court in  observed, the only way to really do so – under the current law –  is to show that the parties have not supported one another for some time, and to show that a complete distribution of the assets/debts has already been made.  If the parties have truly ended the commingling of their assets and live independent lives, then the presumption can be overcome.

And of course, one way to get around the problem entirely is to enter into a cut-off agreement, or an agreement to utilize a specific date as the end date of the marriage for purposes of equitable distribution.  This probably would have helped Mr. McNamara, whose pension was ultimately divided as of February 2013 rather than December 2006.

Practice Tip

As all litigators know, timing is everything.  A conversation with your clients about the timing of the filing of the complaint or entering into a cut-off agreement is critical to effectively representing your client with respect to his or her financial interests.