Maplewood Divorce Attorney

Sometimes litigants don’t want to settle but they don’t want to appear at a deposition or appear for trial.  Sometimes lawyers aren’t prepared, are afraid of trying a case or have other reasons that they don’t want to appear, either.  Like teachers who have heard the “dog ate my homework” excuse one too many times, I am sure that judges also hear every excuse under the sun to delay a matter.  Should they just grin and bear it and give the brief adjournment or should they force the issue?  If they don’t grant the adjournment and the party still does not appear, should a court proceed without them (even if the court warned that that is what would happen)?  What happens then? Should the other side consent to the adjournment?

Doctor Writing On Pad Stock Photo Photo courtesy of freedigitalphotos.net.

These issues recently came up in the case of Ross v. Ross, an unreported (non-precedential) Appellate Division decision that reversed a trial decision because the trial court disbelieved the defendant’s (wife) doctor’s note and proceeded at a trial without her.  In this case, the wife was pro se.  After 4 trial adjournments, the trial finally started.  When it did, defendant told the court that she was having a medical emergency but was willing to stay.  The trial was supposed to resume two days later but on the following day, defendant’s doctor faxed the judge a note saying:

… is suffering from menorrhagia Started hormonal treatment today. I advise bed rest for then [sic] next 2-3 days, until her bleeding stops.

The Appellate Division was kind enough to add the following footnote, because we really needed to know:

Menorrhagia is the medical term for abnormally profuse menstrual flow. Webster’s Ninth New Collegiate Dictionary 741 (9th ed. 1988)

The judge apparently never called the doctor, on the record, or otherwise, to get to the bottom of the issue.  Rather, the trial judge denied the request for an adjournment, (1) because of defendant’s prior history seeking adjournments; (2) because the note was handwritten on a prescription pad, and because he was unaware of whether the doctor even saw defendant before writing the note.

Defendant appealed and the Appellate Division reversed noting:

Here, the note defendant’s doctor faxed to the court identified the condition from which defendant was suffering and specified the treatment required (bed rest for two to three days, or until the bleeding stopped). The judge questioned the legitimacy of the treatment the doctor recommended, because the note did not indicate whether the doctor had physically examined defendant or whether his conclusions and recommendation were based merely upon defendant’s “self-report.”

What information the doctor needed to have before making his recommendation is not common knowledge … Without input from a medical expert, or the doctor himself, the judge did not know that the doctor possessed insufficient information to have given the advice he did. …  Absent further inquiry, such as a telephone call to the doctor in the presence of the parties and on the record, the judge should not have concluded the treatment the doctor ordered was invalid.

The trial court also discounted the worthiness of the note because it was handwritten on a sheet from a prescription pad. There is, however, nothing about a handwritten note which undermines the substantive content of such note, per se. Certainly, the fact the note was handwritten does not detract from its authenticity. …

The Appellate Division recognized the trial judge’s frustration and the fact that people sometimes scam the system to delay things.  That said, there was no way to determine that in this case.  The Court noted:

We are mindful there are litigants who stoop to unscrupulous conduct in an endeavor to delay court proceedings. We do not suggest there are not instances when there is a reasonable basis to reject the authenticity of a doctor’s note or the legitimacy of a doctor’s recommendation that a litigant be excused from appearing in court. Each case is fact sensitive and must be examined on its own merits.

Here, however, there was not a reasonable basis to reject as unreliable the note from the doctor indicating defendant was suffering from a malady requiring bed rest. Given the absence of any evidence the doctor and defendant colluded to “game the system” or that the contents of the note were otherwise unworthy of belief, it behooved the judge to grant a short adjournment of the trial until defendant was well enough to attend court. Under the factual circumstances presented, we are constrained to conclude that the denial of the adjournment request was a mistaken exercise of discretion. Given our disposition, we need not reach the other points raised by defendant in this appeal.

Reversed and remanded for a new trial.

The opinion doesn’t say whether plaintiff objected to the adjournment or not.  If he did, all that got him was the expense of a new trial.  If he didn’t, the take away here is that maybe, in these situations, counsel might want to suggest that the doctor be contacted before disregarding the note and proceeding without a litigant present.

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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.

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

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

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

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

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

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

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm’s Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as Harmful as Physical Abuse."

While some of the local programs Aaron discusses for his county may not be available in New Jersey, the piece provides a good explanation of the issues and I encourage you to read it.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Fox Rothschild’s New Jersey Family Law Legal Blog welcomes Kelly Sutliff, MA, LPC, NCC, a licensed professional counselor with Kelly Sutliff, LPC, located in Madison, New Jersey, as a guest blogger.

Having known Kelly for over ten (10) years and speaking at length with her about the trauma that many children suffer through as a result of divorce, I thought it would be helpful for readers to hear about the mental and emotional impact of this process from a mental health professional. Below is an excerpt from a piece written by Kelly to better help parents going through a divorce understand the impact on their child.

"It’s my fault". "My parents don’t love me anymore". "I lost my family". "I’ll never see my mom/dad again". These heartbreaking comments are commonly mentioned by children affected by divorce. Although these comments may be unrealistic, the sense of loss a child may feel as a result of his or her parents’ divorce can be overwhelming and devastating. It is important for parents to help their children to cope with the divorce as well as to seek outside professional help, if needed.

Divorce can be an emotionally traumatic experience that can have an impact on a child’s feelings of safety, security, and stability. Frequently, the stress children feel as a result of their parents’ divorce relates to the family structure changing. Children fear change and the amount of changes that follow a divorce can be overwhelming and frightening. Many children also feel a loss of attachment to one or both of their parents after a divorce. Changes in scheduling and how often they see a certain parent can cause a certain amount of distress. The fear of being abandoned is also a fear that many children of divorced families face. Often, they feel that because one parent has moved out of the "family home", they are likely to lose the other parent at some point as well. They may blame themselves, feel unloved, and worry that they are the cause of their parents’ relationship ending. Another factor that can lead to children’s feelings of stress is hostility and fighting between parents. Arguments and tension between parents may make children feel angry, guilty, and alone. Some children feel "put in the middle" of their parents’ arguments and believe that they are being asked to choose sides. The internal struggle that these children face when feeling this way can have profound negative effects on their behavior.

Continue Reading DIVORCE FROM A MENTAL HEALTH PROFESSIONAL'S PERSPECTIVE

Trials in divorce matters are kind of like the Loch Ness monster – lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court’s have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don’t, what is supposed to happen.
 

Continue Reading What Happens When the Judge Ignores Trial Stipulations

New changes implemented by the IRS to the "Innocent Spouse" rule provide greater protection for those spouses seeking relief under the broadly described "inequity" provision of the rule.  Generally, speaking, most spouses file joint tax returns and do not consider a subsequent tax liability that may befall upon them.  In the face of such a scenario, the innocent spouse rule can provide relief from liability for a partner’s tax debt under certain conditions.  For a greater sense of the rule and its specifics,review this prior entry on our blog and the linked alert previously issued by our Family Law Department on the topic.

New protections afforded by the legislative changes relieve claimants of the strict confines of a 2 year limitation on filing claims when the spouse claims that it would simply be inequitable to hold him or her responsible, which, in actuality, covers a broad spectrum of claims not encompassed by the other more narrow provisions leading to innocent spouse status.  Previously under a claim of inequity, if the spouse did not file for relief within 2 years of receiving an IRS collection notice of the subject debt, that spouse was not entitled to relief.  Oftentimes, an otherwise qualified spouse would be denied relief even if they did not know of the notice until after 2 years had passed (including cases where one spouse hid the notice from the other) or, even more specifically in the case of an abused spouse, knew of the notice but was too afraid to notify the IRS from fear of spousal retribution.

Significantly, this rule will seemingly apply both prospectively and retroactively, and the IRS may even suspend collection efforts on pending debts.  Even better, if you were previously denied a claim for innocent spouse status under an inequity claim due to the 2 year rule, the IRS said that you can reapply for the very same relief in most cases.  Suffice it to say, the relief for eligible "innocent spouses" can be life altering.

The usual result after a domestic violence trial where the parties had been living together at the time of the entry of the Temporary Restraining Order (TRO) is that a Final Restraining Order (FRO) will be entered and the defendant kept out of the home, or the TRO will be dismissed and the defendant would be free to move in.  What usually does not happen, and in the majority of cases cannot happen, is that the trial judge dismissed the TRO but Orders the defendant out of the home anyway.  However, that is exactly what the trial judge did in the case of C.R. v. A.R., an unreported (non-precedential) Appellate Division opinion released on May 5, 2011. The Appellate Division disagreed that this was proper in this case and reversed.

After the trial, the trial judge dismissed the domestic violence complaint, finding that the evidence did not
demonstrate the occurrence of any acts of domestic violence. However immediately upon explaining why the complaint should be dismissed, the trial judge stated the following:

Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she’s the oldest and the adult, that she should be the spokesperson for all the girls. But it’s clear that they don’t want the parents living together.

And I —— I tend to agree with them. I don’t think it would be in the parents’ best interest to be living in the house together, in light of what’s been going on.  So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that’s on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby’s] going to be leaving shortly, will be out of the country, and I —— assume that she has somewhat been the —— the leader or the caretaker for the girls while this has been going on for the last two months. So, [Alan], I am not going to allow you back in the house to live.

 

Continue Reading Trial Judge Says You Didn't Commit Domestic Violence But Get Out – Appellate Division Says Not So Fast

If you have been through the process of divorce and have a spousal support obligation to your ex, you should have been advised that aside from explicitly stating an end date for your spousal support obligation, there are few ways to end the payments.  Death is certainly one of them.  If your ex remarries that is a second.  What happens when your ex is living with someone else?

The issue of cohabitation has been dealt with by the courts in NJ in case law since the 1970’s.  The issue in and of itself is not new.  How the courts have dealt with allowing parties to prove the issue has been somewhat fuzzy, until a recent unpublished Appellate Division decision provided what seems like some much needed, long time coming, guidance.  If you haven’t already, take a look at Wonderlin v. Wonderlin .

So what’s the guidance- well let’s start with the basic principles cases like Konzelman v. Konzelman, 158 NJ 185 (1999) and Gayet v. Gayet, 92 NJ 149 (1983) have given us.  In Gayet, the court told us we need to look at whether the cohabitating couple bears the "generic character of a family unit as a relatively permanent household".  In Konzelman, the court told us that the relationship in question needed to show signs of "stability, permanency and mutual interdependence".  The proof required is that "of an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage" which include but are not limited to "living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle".  The problem for litigant’s and practitioners alike has been, how do you prove such intimate details at first blush so as to convince a court that you have met your burden of proof and now the alleged cohabitating ex must produce evidence to show there is no economic benefit of the relationship and the spousal support is still needed?

Continue Reading I THINK MY EX IS COHABITATING- NOW WHAT?

Recently, I was at a mediation where the mediator, when telling us his assessment of my client’s case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense – but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level – what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party’s relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party’s confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers."  It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court assistance when you want temporary support or time with the children. He said that any lawyer can get the same result and that hiring a good lawyer sets the client up for a racket that is in the lawyer’s best interests, but not the client’s.

Unfortunately, this is not the first time that I have seen attacks on lawyers from the mediation community.  There appears to be a turf war.  Either you are mediation friendly, or you are not.    Rather than recognizing that some cases are more amenable to mediation than others, the followers would rather attack the "non believers."  

While I agree that most cases will settle, many cases take a fair amount of discovery and litigation to get there. To believe otherwise is simply naive. 

Further, while mediation is not for everyone, it is a useful tool in many cases, Then again, just as not all attorneys are alike, neither are all mediators.  In fact, I suspect that the author of the blog that I read would agree that not every mediator can get the same result – though he says that any lawyer can. 

In a prior blog from May 2009, I wondered whether the mediator’s goal was a fair settlement or just a settlement.  To see another blog post on mediation that I authored, click here.  Are parties, often the woman being protected from the imbalance of power that permeated the marriage?  Are people being told of their rights when they appear at mediation without lawyers?  What efforts are made to ensure full and accurate disclosure?  Are the appropriate appraisals being done at all, and when done, are they being challenged and scrutinized to make sure that they are fair and accurate? 

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.  Many of these deals came from the "best mediators." 

That said, rather than attacking lawyers, mediators should recognize that there is a place for the best attorneys and the best mediators.  I posit that the best and most fair mediated settlements will result from the attorneys and mediators working together rather than attacking each other.  I am sure that we can all agree that a fully informed settlement, where both parties interests are fully protected, is optimum.